The ET found that the claimant had suffered direct disability discrimination and victimisation and awarded her over £10,000 in compensation. The respondent appealed on the basis that the claim had been brought out of time. The claimant applied to have her appeal costs paid by the respondent.

The EAT dismissed the appeal. There was no express finding by the Employment Tribunal on a late point raised by the respondent on limitation. However, it was plain that there was a "continuing act" which rendered all claims in time. The ET also made a permissible finding of section 13 discrimination, the point being academic since there was no challenge to a section 15 finding. A costs application by the claimant was refused since the limitation point was arguable and capable of affecting the level of compensation.

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Appeal No. UKEAT/0160/15/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 2 October 2015

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

FENN T/A POWERCUTZ (APPELLANT)

SCHREEVE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS KATHERINE REECE (Representative)
Peninsula Business Services Ltd
The Peninsula
Victoria Place
Manchester
M4 4FB

For the Respondent
MS JOANNA BRADBURY (of Counsel)
Instructed by:
Gordon Dean Solicitors
16 Princes Street
Norwich
Norfolk
NR3 1AE

JURISDICTIONAL POINTS - Claim in time and effective date of termination

DISABILITY DISCRIMINATION - Direct disability discrimination

PRACTICE AND PROCEDURE - Costs

Equality Act 2010 limitation. No express finding by the Employment Tribunal on a late point raised by the Respondent below. However, it is plain that there was a "continuing act" which rendered all claims in time.

Permissible finding of section 13 discrimination, the point being academic since there is no challenge to a section 15 finding.

Costs application by the successful Respondent refused. Limitation point arguable and capable of affecting level of compensation.

1. This case has been proceeding in the Norwich Employment Tribunal. The parties are Miss Schreeve, Claimant, and Ms Fenn trading as Powercutz, Respondent. The Respondent owned and operated a barber's shop in Caister-on-Sea, where she was assisted by her husband, Mr Shipp. The Claimant was employed as a barber at the premises from 9 April 2012 until her summary dismissal on 23 September 2013. She is dyslexic. That constituted a disability within the meaning of the Equality Act 2010 ("EqA"). Ms Fenn was aware of her condition from the outset of the employment, so a Tribunal chaired by Employment Judge Postle found at paragraph 5.3 of the Reasons dated 21 January 2015 for a Judgment dated 24 November 2014. By that Judgment the Tribunal found (1) that the Claimant's dismissal was an act of direct discrimination under section 13 and discrimination arising from disability under section 15 of the EqA, (2) she was subjected to harassment contrary to section 26 of the EqA, and (3) she was entitled to compensation totalling £10,140.20 together with an order for costs.

1. Against that Judgment the Respondent brings this appeal. The Notice of Appeal raises four grounds, two of which were permitted to proceed to this Full Hearing by Lady Stacey on the paper sift. The first is a limitation point in relation to the Tribunal's finding of pre-termination harassment; the second is directed to the finding of section 13 direct discrimination.

1. The Tribunal expressed their views on the credibility of the witnesses from whom they heard at paragraph 8 of their Reasons. The Claimant and her mother gave their evidence in a way that was consistent and straightforward. Ms Fenn's evidence is described as confused, disingenuous and like shifting sand; she was an unconvincing witness. Mr Shipp and the other witnesses called by the Respondent added very little, in the view of the Tribunal.

1. In these circumstances it is unsurprising that the Claimant's account of her time in the Respondent's employment was accepted. At paragraph 5.6 the Tribunal describe how during the employment the Claimant was frequently belittled about her difficulties in reading and writing stemming from her dyslexia. She was mocked by both Ms Fenn and Mr Shipp from time to time, called "Thicky Vicky". The last incident in time specifically recorded by the Tribunal in their Reasons was in August 2013, when she was belittled over the mis-spelling of a client's name in the appointment book and this in front of young children (paragraph 5.7). This course of conduct, the Tribunal found, amounted to section 26 harassment.

1. On 5 September 2013 the Claimant went off sick due to stress and anxiety in consequence of her treatment (paragraph 5.8). On 7 September Ms Fenn wrote to the Claimant requesting a meeting to discuss her absence from work. The meeting - attended by the Claimant, her mother, Ms Fenn and Mr Shipp - took place on 9 September. Mr Shipp gave some sort of an apology for his past behaviour. During the meeting the Claimant referred back to her concern at being mocked and called "Thicky Vicky". It was agreed that she would return to work on 11 September. She did so, but on 15 September she went on holiday, due to return on 25 September.

1. On 23 September Ms Fenn telephoned the Claimant out of the blue. Ms Fenn claimed in evidence that on that occasion she merely suspended the Claimant; the Tribunal found that in fact she summarily dismissed the Claimant, a dismissal confirmed in writing on 25 September, for alleged misconduct. That, the Tribunal found, was a trumped-up charge. The real reason for dismissal was the fact that the Claimant had complained about the Respondent's attitude to her disability at the 9 September meeting. That, I pause to observe, had rendered her dismissal unfair, but she had insufficient continuous service to bring an additional complaint of "ordinary" unfair dismissal, a finding that had been made at an earlier preliminary hearing by the same Judge, Employment Judge Postle.

1. At paragraph 7.1 the Tribunal found that the Claimant had suffered continuing harassment in the form of belittling comments regarding her dyslexia. At paragraph 7.2 the Tribunal found that the complaints of direct discrimination (section 13) and discrimination arising from disability (section 15) had been made out. The only reason for her dismissal was her disability and the unfavourable treatment resulting from her disability. They then considered questions of remedy and costs at paragraph 9.

1. I shall deal with the two remaining grounds of appeal in turn.

1. The Tribunal decision makes no mention of limitation. It was not a point raised in the Respondent's form ET3. However, it is common ground that it was raised for the first time in closing submissions by Ms Montaz, the consultant then representing the Respondent. The point as articulated by Ms Reece on appeal is that there was no finding by the Tribunal of any individual act of harassment after August 2013 and the form ET1 was presented on 19 December 2013, thus the harassment complaint was out of time, and no extension of time was sought or granted by the Tribunal. Indeed, the Tribunal wholly failed to adjudicate on the limitation point raised by Ms Montaz.

1. Under the pre-EqA discrimination legislation, the concept of a continuing act for limitation purposes included any act extending over a period being treated as done at the end of that period (see, for example, the Disability Discrimination Act 1995, Schedule 3, paragraph 3(3)(b)). Section 123(3)(a) of the EqA alters the previous wording to refer to conduct extending over a period being similarly treated. Section 123 dealing with time limits applies to proceedings on a complaint within section 120. Section 120 covers, among others, complaints relating to a contravention of Part V of the EqA. Part V relates, among other things, to complaints of discrimination against employees under sections 13, 15 and 26 (see sections 39 and 40).

1. On the particular facts of the present case I am entirely satisfied that the Tribunal has found an unbroken course of unlawful conduct by the Respondent culminating in the Claimant's discriminatory dismissal. The pattern of harassment led to the Claimant's complaint on 9 September, which in turn led to the discriminatory dismissal on 23 September. That was a continuing discriminatory state of affairs as described by Mummery LJ in Hendricks v Commissioner of Police for the Metropolis [2003] ICR 530 at paragraph 48. In these circumstances, in my judgment, time ran from 23 September. The claim lodged on 19 December was in time. Although not spelt out by the Tribunal, I shall affirm their Judgment on the basis that were I to remit the case for a reasoned determination of the limitation point - and I would remit it to the same Tribunal, having heard submissions from both parties on that point - the outcome would, in my view, inevitably be that the claims were all in time.

1. There is no challenge to the Tribunal's finding of section 15, unlawful discrimination by way of dismissal. Ms Reece accepts that a finding in favour of the Respondent on appeal in relation to the section 13 finding only would make no difference to the overall award of compensation. Nevertheless, I should answer the question: was the Tribunal's section 13 finding supported by their reasoning and the facts found? Section 13(1) provides that:

"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

1. Here, the Tribunal found that the reason for the Claimant's dismissal was her disability and that dismissal arose in consequence of her disability. Both findings were open to them on the facts. The first, it seems to me, covers the section 13 complaint. Had she not suffered from dyslexia and then complained about her treatment, she would not have been dismissed on a trumped-up conduct charge; that is direct discrimination.

1. In these circumstances, this appeal fails and is dismissed.

1. Following my Judgment in this appeal the Claimant through Ms Bradbury applies for costs in the appeal. Those costs have been estimated at what seems to me the modest figure of £2,053. The real question is whether or not in principle I ought to exercise my discretion in favour of making an order for costs bearing in mind the limited costs jurisdiction in this Tribunal. Ms Bradbury submits that having had two grounds of appeal rejected that meant that the Respondent was unable to discharge the whole of the Tribunal's Judgment it was unreasonable to pursue the appeal on the remaining two grounds.

1. I cannot accept that submission. Lady Stacey considered those two grounds to be arguable, and on that basis they went forward to a Full Hearing. With the benefit of hindsight I am less convinced in relation to the section 13 point, but I accept Ms Reece's submission that the limitation point raised a question of law that required determination at a Full Hearing. As to the point that success on the limitation point alone would not have had any effect on the quantum of compensation, again, I agree with Ms Reece, looking at paragraphs 10.9 and 10.10 of the Tribunal's Reasons, that the fact of a course of harassment as found by the Tribunal affected the level of compensation for injury to feelings, thus had the appeal succeeded on the limitation point it had potential to reduce the level of compensation. The same, of course, cannot be said of the section 13 point. However, taking all of these matters into account and whilst sympathetic to the Claimant, who is of limited means, I am not persuaded that this is a case in which to exercise my discretion in favour of awarding costs, and consequently this application is dismissed.