Allen v Secretary of State for Work & Pensions (Job Centre) UKEAT/0498/08/DM

Appeal No. UKEAT/0498/08/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 November 2009

Judgment handed down on 19 January 2010

Before

HIS HONOUR JUDGE BIRTLES

(SITTING ALONE)

MISS R ALLEN (APPELLANT)

THE SECRETARY OF STATE FOR WORK AND PENSIONS (JOBCENTRE PLUS) (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR STEFAN BROCHWICZ-LEWINSKI (of Counsel)

Instructed by: Messrs Canter Levin & Berg Solicitors 1 Temple Square 24 Dale Street Liverpool Merseyside L2 5RU

For the Respondent MR STUART BRITTENDEN (of Counsel)

Instructed by: Messrs Field Fisher Waterhouse LLP 35 Vine Street London EC3N 2AA

**SUMMARY**

DISABILITY DISCRIMINATION

JURISDICTIONAL POINTS

Continuing act, appropriateness of determining continuing act at a pre-hearing review

2002 Act and pre-action requirements

The Employment Judge was entitled to find on the material before him at a Pre-Hearing Review that some grievances were not extant. The Employment Judge was entitled to determine the continuing act point at a Pre-Hearing Review. The comments of Elias J in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 are not dicta but part of the ratio of the case. In any event they should be followed by the EAT.

**HIS HONOUR JUDGE BIRTLES** **Introduction**
  1. This is an appeal from the decision of Employment Judge E Lloyd Parry sitting in Liverpool on 22 May 2008. The reserved decision was sent to the parties and entered in the register on 14 August 2008.
  1. The Judge decided on a preliminary question that the Claimant should proceed to a full hearing before the Employment Tribunal based upon the complaints indicated in paragraphs 4.8 and 4.9 of his judgment and only on such complaints. He enlarged time for the making of those complaints.
  1. The Appellant is represented by Mr Stefan Brochwicz-Lewinski and the Respondent is represented by Mr Stuart Brittenden of counsel. I am grateful to both of them for their written and oral submissions.
**The Material Facts**
  1. By claim forms numbered 212374/07 filed on 13 June 2007 and 2104938/07 filed on 27 November 2007 Miss Allen brought claims of disability discrimination. She claims that she has suffered ongoing discrimination caused by her employer's repeated and continued failure to make reasonable adjustments for her disability (bipolar disorder).
  1. On 13 March 2008 directions were given at a case management discussion and on 22 May 2008 there was a pre-hearing review before Judge E Lloyd Parry. The relevant direction under consideration was this:

"It is not yet clear what part of the claims amount to substantive complaints and what parts amount to the evidential matrix or background contextual material. The answer to that question might determine what parts of the claim are in time or have been subject to a statutory grievance and, if others arise out of time, where the time has been extended by the presentation of a statutory grievance or whether it is just and equitable to extend time."

  1. The findings of fact made by the Judge are set out in his judgment at paragraphs 2.3-2.12. He said this:

"2.3 On 12 September 2003, the claimant sent to her line manager the e-mail message at page 45 of the bundle. In it she seeks to dispel the rumour, the extent of which she does not know, that she has been suspended: she emphasises that she is off sick. She is angry and distressed at perhaps being the subject of office gossip. She urges an expeditious end to an over protracted audit of her use of her computer that implied a suspicion of impropriety. The result of the audit was the complete vindication of the claimant. She was aggrieved by the decision to undertake the investigation at all but when her line manager said that he wanted to draw a line under the incident, although she said was "totally astonished" (paragraph 14 of her statement) she appears to have taken no further action in the matter, raising it only years later for these proceedings. I decided that this grievance might not reasonably be said to be extant insofar as it might be said to be about conducting the audit. Further, it was a statement of grievance about false rumours. Nothing more was heard about them from the claimant by way of grievance. Seen in that light, too, the grievance is not extant.

2.4 On 29 December 2003, Mr Penn, the claimant's union representative, wrote what should be viewed as a grievance letter on her behalf (pages 47 and 48 of the bundle). There was a complaint about the letters from the line manager. But this was not maintained as a grievance during the 4 years or so before the lodging of her present claim and I conclude that the particular grievance is no longer extant. She also asked for transfer to a different site and was moved to another in Warrington. Although the move did not ultimately work out, her request was granted and new grievances occupied her. Satisfactorily disposed of (albeit only for the time being), it is no longer extant as a grievance. The representative also complained that the respondents refused her requests that she might work only during school terms. She says that to have complied would have been a reasonable adjustment in that it would have reduced the stress on her. This complaint was not subsequently pursued and does not survive as an extant grievance.

2.5 In May 2004, the claimant returned to work after being off ill for nearly a year.

2.6 On 3 September 2004, Mr Penn wrote another letter of grievance to the respondents (pages 49 and 50 of the bundle). He makes a generalized accusation of sexual harassment and malicious allegations. But the main thrust of the letter is to complain that the transfer to another workplace that she had requested, though initially welcomed, had been spoilt because she had not been given the training and support she needed in the changed job allotted to her. A further move had been agreed but not put into effect through administrative error.

2.7 On 3 October 2005, a formal written grievance was made on the claimant's behalf. It is at the pages commencing page 51 in the bundle. It is written on a document formally laid out for a grievance. The complaint is about the refusal of special leave for the period from 15 July 2005 to 5 September 2005. It is clearly a sufficient written grievance. In her statement (at paragraph 29) the claimant says that her appeal against the initial refusal was successful and she was granted the special leave. Thus the grievance was satisfactorily disposed of and may no longer be regarded as extant. However, the claimant was disgruntled by the need to go to appeal at all. But she raised no grievance about the matter, not did anything more about it.

2.8 On 30 March 2007, Ms Tuft, the claimant's union representative, wrote a grievance letter (page 71) to the respondents complaining that they did not release the documentation or the complaint against her. Her treatment contrasted with that accorded to able-bodied colleagues. The same day, a grievance was made that they had, contrary to procedure, failed to discuss with her the contents of her PDS.

2.9 On 1 April 2007, Ms Tuft wrote to the claimant's line manager the letter at page 76 of the bundle. It asks a series of questions about the claimant's requirements and the action taken or to be taken about them. It is not a grievance letter, it contains no statement of a grievance, but only seeks information.

2.10 On 3 April 2007, the claimant made the formal written grievance included in the bundle in the pages commencing page 77. She complains against the decision to carry out a fraud investigation and the failure to provide her with a copy of the complaint. It had been decided that there was against her no case to answer. This is clearly a sufficient grievance. While she doubtless welcomed the result, to make an accusation unsupported by significant evidence (which, I take it, is what is meant by "no case to answer") might be regarded as a matter of grievance whatever the outcome. The claimant says that the accusation of fraud against her was vexatious (page 77 of the bundle).

2.11 On 5 April 2007, the claimant made the formal written grievance contained in the pages commencing page 93 in the bundle. It runs to great length. She complains that the respondents failed to give her a post in the Greater Manchester district. She goes into detail as to why she believed the refusal was discriminatory and unfair. This is clearly a sufficient grievance.

2.12 On 18 April 2007 Mr Broom, the claimant's union representative, wrote to Mr Millhouse, one of the respondents' management, the letter at pages 87 and 88 of the bundle. It accuses the respondents of not explaining to her what work she should be doing on her return to work or discussing risk assessments with her, of getting in touch with her outside working hours. It also says that the department's diversity champion would be approached to discuss the "dreadful treatment" she had received during the previous 3 years. This is a sufficient grievance about the failure to inform about work or discuss risk assessments, and getting in touch outside working hours. But it is not a grievance letter about the previous 3 years: there is no detail in support, it is simply a generalized accusation and the respondents are in no way told what the dreadful treatment was."

**The Employment Judge's Judgment**
  1. Having set out the law in paragraphs 3.1-3.6 of his judgment the Judge reaches conclusions in paragraphs 4.1 - 4.10 of his judgment where he said this:

"4.1 I had regard to the precepts referred to in the succeeding paragraphs: they were enunciated by Elias J in his judgment in the Canary Wharf case.

4.2 Elias J said at paragraph 19 of the judgment:-

*

'There is no maximum time limit prior to the lodging of the claim to the tribunal in which the grievance must have been raised.'*

4.3 And Elias J added:-

*

'that is not to say, however, that the act of raising a complaint months or years prior to lodging the tribunal claim will necessarily constitute the appropriate raising of the grievance. The grievance must be extant. If it can no longer properly be said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee [not 'employer' as in the ET judgment]

has not pursued it in circumstances where it may properly be inferred that he no longer wishes to have it determined, then it will be necessary for the employer to raise the complaint again in written form.'*

4.4 And (at paragraph 25) Elias J further says:-

*

'It seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised.'*

4.5 There is no need to set out the basis of the complaint, only to identify it; and it must be the same complaint as is advanced before the Tribunal (paragraph 21). The only formal requirement is that the grievance is set out in writing.

4.6 I did not find that the various complaints the claimant makes were simply episodes in the same series forming one continuing act of discrimination. The account she gives is of a number of disparate acts, by one line manager after another or, once, by gossiping work colleagues, each acting in various unfriendly ways, personally insulting, unfeeling, indolent, inefficient. I cannot discern a unity in all the variety. What she says amounts to the accusation that in their different ways, at different times, and in different circumstances, people underestimated, ignored or abused the particular needs of her disability. But it was several acts of discrimination by individuals behaving as such on various occasions, not a unified series in the same concerted proceeding.

4.7 I have indicated above in the account of the facts that there is nothing in the claimant's strictures against the respondent that before March 2007 amounts to an extant grievance: either because they were not grievances or because they were not extant.

4.8 The claim that the respondents were discriminatory in deciding to conduct the fraud discrimination is a sufficient description of the claimant's written grievance and is extant (page 77 to 78). So, too, is the grievance set out in the letter of 30 March 2007 concerning the claimant's PDS (page 72); and the grievance of the same date as to the failure to release documentation (page 71). So, too, is the grievance (pages 85 to 86) about the manner of the redundancy consultation and the grievance about the decision not to assign the claimant to a particular posting (page 93 to 100). I had regard to the proximity in time of the incidents that form the subject of these grievances, and the claimant's history of illness at the period (early in 2007, a brain tumour was suspected and she underwent a serious operation; as well as continuing to suffer from bi-polar disorder). I consider the potential gravity of a vexatious accusation of fraud. I find that justice and equity require any extension of time needed to validate these complaints.

4.9 Thus, all the matters forming the subject of grievances from 30 March 2007 onwards are substantive parts of the claim that now go forward to adjudication in due course.

4.10 The extent to which the factual history of the claimant's career with the respondents before 30 March 2007 is at the trial explored as background will be for the Tribunal that hears the case to decide."

  1. The effect of the judgment is (1) that Miss Allen's claim of disability discrimination became limited to events raised in grievances dated 30 March 2007 onwards. These grievances refer to Miss Allen's investigation by the Risk Assurance Division of the Department of Work and Pensions and events thereafter (including, in particular, Miss Allen's selection for redundancy - which, she says, was discriminatory). Mr Brochwicz-Lewinski has produced a very helpful schedule of events attached to his skeleton argument.
  1. In limiting Miss Allen's claim as he did, the Judge excluded from the proceedings (otherwise and by way of relevant background fact) the events from about June 2003 onwards, which included:

(i) an investigation in 2003 regarding Miss Allen's use of the internet that was allegedly inappropriately instigated and conducted, which led to a significant stress and associated illness and absence;

(ii) various alleged failures (in 2004 and 2005) to make reasonable adjustments to facilitate Miss Allen's successful return to, and continued attendance at, work - which it is alleged caused further absences from work;

(iii) various alleged occasions of inappropriate treatment of Miss Allen at work which caused her to suffer further upset and illness.

**The Amended Notice of Appeal**
  1. The amended Notice of Appeal appears at Appeal bundle pages 7-10. Essentially it sets out two grounds of appeal. I take each ground in turn.
*Ground 1: Extant Grievance*
  1. The Appellant submits that the Judge erred in requiring an extant grievance to have been raised (and apparently to have remained outstanding) as a pre-condition for the Appellant's complaint to proceed to a full hearing.
  1. Section 32(2) of the Employment Act 2002 (which continues to apply to these proceedings by virtue of the Employment Act 2008 (Commencement No 1, Transitional Provisions and Savings) Order 2008 Part 1 provides as follows:

"(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with."

  1. The relevant part of Schedule 2 of the Employment Act 2002 states this:

"PART 2

GRIEVANCE PROCEDURES

CHAPTER 1

STANDARD PROCEDURE

Step 1: statement of grievance

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

CHAPTER 2

MODIFIED PROCEDURE

Step 1: statement of grievance

9. The Employee must-

(a) set out in writing-

(i) the grievance, and

(ii) the basis for it, and

(b) send the statement or a copy of it to the employer."

  1. In each case there are further procedural steps which will need to be followed. In the case of the standard procedure step 2 requires the employer to invite the employee to attend a meeting so as to discuss the grievance. But the meeting should not take place unless and until the employee has informed the employer what is the basis for the grievance and the employer has had a reasonable opportunity to consider his response to that information. Step 3 concerns the right of appeal. Under the modified procedure there is simply a second step at which the employer sets out his response in writing to the grievance raised by the employee.
  1. Under Section 32(7) the Secretary of State is empowered to make regulations about the application of these procedures, and more specifically about what constitutes compliance with paragraph 6 or paragraph 9 of Schedule 2. This she did by the Employment Act 2002 (Dispute Resolution Regulations 2004). Under Regulation 2(1) the term grievance "means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".
  1. Regulation 6 then deals with the circumstances in which these grievance procedures are to be followed. Regulation 6(1) states:

"(1) The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation, in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place."

  1. The regulations then provide that the standard grievance procedure will apply save in certain exceptional cases. It is not necessary for the purposes of this decision to analyse those exceptions. Suffice it to say that one of the exceptions is when the modified procedure applies. However, that will be rare because a number of conditions have to be met before it is applicable, including that the employees cease to be employed by the employer and that the parties must have agreed in writing to the modified procedure being applicable. Two of the exceptions are where the disciplinary or dismissal procedures are considered more appropriate. It is to be noted that dismissal for this purpose does not include constructive dismissal: Regulation 2(1). Hence the reason why complaints relating to conduct which causes the employee to resign fall under the grievance procedure provisions. In Canary Wharf Management Ltd v Edebi [2006] IRLR 416 at paragraphs 15-23 Elias J said this:

"15. These are complex and not happily structured regulations. But it is at least plain that a Tribunal having to consider whether or not it has jurisdiction to deal with the particular complaint, will have first to consider whether either grievance procedure applies at all, and if so which, (although in almost all cases it is likely to be the standard grievance procedure). Where the question of jurisdiction is in issue, it will then have to determine whether there has been compliance with the first step in the procedure.

16. Where the standard procedure is applicable, that merely requires that there should be the statement of the grievance in writing sent to the employer. However, since as I have indicated a grievance under the regulations means a complaint about action which the employer has taken or is contemplating taking in relation to him, it follows that the statement of the grievance is simply a statement of such a complaint. It must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal.

17. I note, in passing, that in one of the decisions to which we were referred, namely Galaxy Showers Limited v Wilson [2006] IRLR 83, the Employment Appeal Tribunal (Langstaff J presiding) observed that the complaint about an act can also include a failure to act. I agree. For example, in the context of a disability claim the complaint may be that an employer has failed to make reasonable adjustments. In my view, that would constitute a matter in respect of which there should be a grievance raised under the statute before the Tribunal can exercise jurisdiction.

18. There are certain points to note about the obligation imposed by paragraph 6. In making the following observations I draw upon comments made in the judgments of this Tribunal in four separate cases: Shergold v Fieldway Medical Centre [2006] IRLR 76, Galaxy Showers (to which I have already made reference), Mark Warner Ltd v Aspland [2006] IRLR 87 and Thorpe, Soleil Investments Ltd v Poat and Lake EAT 05/03/05/SM. I agree with the analysis made in those cases about the requirements of paragraph 6.

19. First, the timing of the grievance. There is no maximum time limit prior to the lodging of the claim to the Tribunal in which the grievance must have been raised. There is the minimum period of 28 days which must be allowed for the employer to deal with it and go through the relevant procedures, but no maximum period. That is not to say, however, that the act of raising a complaint months or years prior to lodging the Tribunal claim will necessarily constitute the appropriate raising of the grievance. The grievance must be extant. If it can no longer properly be said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee has not pursued it in circumstances where it may properly be inferred that he no longer wishes to have it determined, then it will be necessary for the employee to raise the complaint again in written form.

20. Second, the form of the grievance. There is considerable flexibility about that. It may be raised in a resignation letter (as here). It may even be raised after a dismissal has taken effect (indeed that is one of the conditions for the application of the modified procedures). It may be raised by a solicitor in a communication to the employer's solicitor (as in the Mark Warner case). It matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise. (See regulation 2(2).)

21. Third, the content. The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore, that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. As Burton J succinctly put it in the Shergold case:

'the grievance must relate to the subsequent claim, and the claim must relate to the earlier grievance.'

22. It is not even necessary that the employee should indicate that he wants or expects the complaint to be dealt with; he does not need to be actively invoking the grievance procedure, statutory or contractual. The paragraph is satisfied simply if the complaint is made. Once that occurs, the onus falls on the employer to arrange a meeting to deal with a grievance although the employee will then have to notify the employer of the basis of that grievance.

23. How then does one determine whether the relevant complaint has been made? In Shergold, Burton J said this at paragraph 28:

"…the statutory wording…very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal…"

  1. The Appellant submits that it could not, ought not, to have been Elias's J intention to impose a requirement that all matters complained of in employment tribunal proceedings are subject to extant grievances, particularly where a continuing act over a period of time is alleged. He submits that paragraphs 19-23 or certainly (in this context) paragraph 19 is strictly obiter and that the Judge erred in law in requiring extant grievances and ruling out grievances which he regarded as extant. Mr Brochwicz-Lewinski illustrates his submission by referring to a "bumper" grievance where there has been a course of alleged discriminatory conduct spanning five years. It would be onerous he says to require a precondition for an employee to lodge a relevant employment tribunal claim to set out in a grievance letter all of the grievances for that five year period. Furthermore he submits that the fact that a grievance has been raised and dealt with during the period, or not proceeded with, does not mean that the matters to which it pertained ceased to be relevant to an allegation of ongoing discrimination eventually made.
  1. Mr Brittenden submits that the Judge correctly directed himself in law to the Canary Wharf Management Ltd case and refers me to subsequent case law: Suffolk Mental Health Partnership NHS Trust and Others [2009] IRLR 452 per Pill LJ at paragraphs 61-62: Step in Time Limited v Fox and Another UKEAT/0031/08/MT per Elias P at paragraphs 21-22: 39; 42-43. Mr Brittenden also referred me to Smith v Network Rail Infrastructure Ltd UKEAT/004/07/DA per HHJ Serota QC at paragraphs 28#29 and Weare v HBOS Plc UKEAT/0300/08/JOJ per Elias P at paragraphs 27, 29-30.
**Discussion**
  1. I prefer the reasoning of Mr Brittenden for the following reasons. First, I do not think that Elias J in Canary Wharf Management Ltd was putting a gloss on Section 32(2) of the Employment Act 2002 or the Employment Act 2002 (Dispute Resolution) Regulations 2004. Regulation 32(2) Schedule 2 chapter 2 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 have to be read together in order to make sense of them. As a matter of commonsense and the English language a grievance which has been satisfied or settled or which has ceased to be pursued is no longer a live grievance. It is not extant. It is difficult to see why an employee should be allowed to rely on such a grievance which is a prerequisite to making a claim in the employment tribunal. Second, I can see no practical difficulty in an employee raising in a letter before making a claim to an employment tribunal each issue on which she/he intends to rely.
  1. Third, I accept Mr Brittenden's submission that subsequent case law supports the interpretation of Elias J in the Canary Wharf Management Ltd case that the grievance must be extant. In Suffolk Mental Health Partnership NHS Trust and Others [2009] IRLR 452 the Court of Appeal did not dissent from the guidance set out in the Canary Wharf Management Ltd case. Neither did the Court of Appeal criticise the similar approach adopted by Elias J in Step in Time Limited v Fox and Another UKEAT/0031/08/MT: see the judgment of Pill LJ at paragraphs 59-60.
  1. In my judgment the effect of the case law referred to above is as follows. In circumstances where a claimant has raised a grievance in writing some years before presenting a claim form, the following principles apply. The Tribunal will lack jurisdiction if:

(i) the grievance was "satisfactorily dealt with" (i.e. the grievance or appeal was upheld).

(ii) The grievance was not actively pursued by the claimant at the time.

(iii) In respect of (ii), in order for the tribunal to possess jurisdiction, it "will be necessary" for the claimant to submit a Step 1 grievance "again in written form".

(iv) A further grievance need not be submitted in respect of subsequent matters provided that precisely the same specific allegation of a continuing act of discrimination is in issue. If other subsequent - but different - allegations are made in a claim form (even if linked to the same cause of action and are relied upon as a continuing act) the Tribunal will not have jurisdiction to consider them; Smith v Network Rail Infrastructure Ltd UKEAT/004/07/DA; Weare v HBOS Plc UKEAT/0300/08/JOJ.

(v) Where a specific continuing act of discrimination is not related to a single/same issue (i.e. disciplinary proceedings), the onus rests with the claimant to specify what particular acts she/he seeks to rely upon during the Step 1 process; Suffolk Mental Health Partnership NHS Trust v Hurst and others [2009] IRLR 452.

(vi) In any event, where a grievance is relied upon, on a "fair reading" of it that grievance must alert the employer as to what complaints are in fact "live" or otherwise pursued.

The words in quotation marks are taken from the judgment of Elias J in Canary Wharf Management Ltd v Edebi [2006] IRLR 416.

  1. Fourth, the Employment Appeal Tribunal should be slow to interfere with an employment tribunal's findings of fact as to whether or not a grievance is extant. I decline to do so in this case.
*Ground 2: Continuing Acts*
  1. At paragraph 4.6 of his judgment Judge Lloyd Parry says this:

"I did not find that the various complaints the claimant makes were simply episodes in the same series forming one continuing act of discrimination. The account she gives is of a number of disparate acts, by one line manager after another or, once, by gossiping work colleagues, each acting in various unfriendly ways, personally insulting, unfeeling, indolent, inefficient. I cannot discern a unity in all the variety. What she says amounts to the accusation that in their different ways, at different times, and in different circumstances, people underestimated, ignored or abused the particular needs of her disability. But it was several acts of discrimination by individuals behaving as such on various occasions, not a unified series in the same concerted proceedings."

  1. Mr Brochwicz-Lewinski submits that the proper approach as to whether the Appellant's complaints were capable of constituting a continuing act for the purposes of paragraph 3(3)(a) of Schedule 3 of the Disability Discrimination Act 1995 is set out in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 and Pugh v The National Assembly of Wales UKEAT/0251/06/DA (which was a judgment of HHJ Serota QC at this Tribunal). Particular reference is made to that judgment at paragraphs 37-38 and 41-45. In my judgment the best guide to the correct approach is in the judgement of Mummery LJ in Hendricks at paragraph 52 where he said this:

"52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."

  1. Mr Brochwicz-Lewinski makes three submissions on paragraph 4.6 of the judgment. First he submits that the Judge should not have decided the question of continuing act at a pre-hearing review but should have put the matter through to a full hearing so that the Employment Tribunal could consider the question of whether or not there was a continuing act having heard all of the evidence. Second, he submits that the Judge should have found on the uncontested evidence of the Claimant contained in her witness statement that the various matters she complained of did indeed constitute a continuing act. Finally, he submits that paragraph 4.6 does not satisfy the requirement of Meek v City of Birmingham District Council [1987] IRLR 250 for adequate reasoning. Mr Brittenden makes contrary submissions. I take each submission in turn.
  1. As far as the first submission is concerned it is quite clear that the Judge was specifically charged by an earlier direction to consider the issue of whether it was just and equitable to extend time: paragraph 1.1. The question of whether there is a continuing act is ancillary to the question of whether it is just and equitable to extend time. The two are opposite sides of the same coin. Indeed, the point is specifically raised by the Claimant in her second ET1 filed on 27 November 2007: appeal bundle page 47 paragraphs (xii)-(xvi). No authority was cited to me to support the proposition that it is an error of law for an employment judge at a pre-hearing review dealing only with the issue of extension of time to refuse to consider the issue of a continuing act where it has been raised by a claimant. In some cases it may well be appropriate to defer that matter to a full hearing and decide it after all the evidence has been concluded but in my judgment it is not an error of law to fail or refuse to do so. Furthermore, an employment judge must consider the overriding objective contained in Regulation 4 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. In my judgment this lends support to the proposition that in an appropriate case (such as this) an employment judge is entitled to deal with a continuing act point at a pre-hearing review.
  1. I turn to the second submission. As Judge Serota made clear in Pugh at paragraph 50:

"…there is little difference between a requirement to show a prima facie case and a good arguable case, at least in so far as this case is concerned. I am also satisfied that whether there is an issue as to whether an act is a continuing act or not, a Claimant would show a good arguable case or prima facie case that the allegations made do constitute such an act extending over a period. I derive this from the authorities to which I have referred. A lesser standard will not suffice. Of course at the stage of any preliminary investigation the ET will not be concerned so much with the substantive merits of the allegations, but whether they can be seen at least prima facie to be part of an act extending over the period."

  1. The Judge had before him the witness statement of the Claimant. In other words the Claimant was in a favourable position to persuade him that she was subject to a continuing series of acts. He was not so persuaded. He gave cogent reasons in paragraph 4.6 of his judgment. In my judgment he was entitled to find that the Claimant had not made out a prima facie case that there was a continuing act.
  1. I turn to the third submission. I reject the submission that this judgment is not Meek compliant either as a whole or as in regard to paragraph 4.6.
**Conclusion**
  1. For these reasons the appeal is dismissed.

Published: 20/01/2010 14:21

message