The claimant suffered from MS and alleged that he had been subject by his line manager to comments adverse to his performance who was dismissive of his difficulties arising from his illness. He went off sick in February 2011 and did not return, eventually taking ill health retirement in December 2011. In September 2011 he was assigned Performance Improvement Required status. He lodged his claim for disability discrimination in contravention of ss15 and 20 of the EA 2010 in March 2012. The EJ ruled that the imposition of PIR status was an act which continued until December 2011 and so the claims which relied upon that were in time. However, the EJ did not give sufficiently clear reasons to say why he had not determined that the claims based on the line manager’s comments should be held out of time: instead, he had noted that that question should be determined in the light of further evidence at the substantive hearing. The respondent appealed.

The EAT allowed the appeal. The EJ was in error of law, but the EAT exercised its powers to decide the matter as the EJ had done, though with expanded reasoning.

______________

Appeal No. UKEATS/0057/12/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 22 March 2013

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) (SITTING ALONE)

NETWORK RAIL INFRASTRUCTURE LTD (APPELLANT)

MITCHELL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MS ABIGAIL VIPOND (Solicitor)

MacRoberts LLP
Capella
60 York Street
Glasgow
G2 8JX

For the Respondent
MS LOUISE BAIN (Solicitor)

The Glasgow Law Practice
534 St Vincent Street
Glasgow
G3 8XZ

**SUMMARY**

DISABILITY DISCRIMINATION

PRACTICE AND PROCEDURE

An employee suffering from MS was subjected by his line manager (he said) to comments adverse to his performance, who was dismissive of his difficulties arising from his illness. He fell off work on 4 February 2011, and did not return, eventually taking ill-health retirement on 30 December 2011. During that period he was told (in September 2011) that he had formally been assigned Performance Improvement Required status. On 29 March 2012 he claimed he had been discriminated against in contravention of both ss.15 and 20 of the Equality Act 2010. An Employment Judge at a Pre-Hearing Review called to consider whether the claim was time-barred held that the imposition of the PIR status was an act which continued until 30 December 2011, such that his claim was within time so far as it relied on that, but did not give sufficiently clear reasons to say why he had not determined that the claims based on the line manager's comments should be held out of time: instead, he had noted that that question should be determined in the light of further evidence at the substantive hearing. On a challenge to the latter finding, it was held that the EJ was therefore in error of law, but the Appeal Tribunal exercised its powers to decide the matter as the EJ had done, though with expanded reasoning.

**THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)**

1. In Reasons delivered on 8 November 2012 Judge Meiklejohn explained why when sitting at Glasgow on a Pre-Hearing Review he had held that the Claimant's claims under sections 15 and 20 of the Equality Act 2010 were not time-barred. The employer appeals against that determination so far as the section 15 claim is concerned but not that under section 20.

**The Background Facts**

1. The employee had 27 years service with the employer. After 23 years he developed Multiple Sclerosis. He was absent from work on account of that condition from 4 February 2011 until he took ill-health retirement with effect from 30 December 2011. Sadly since then he has suffered a stroke.

1. His complaint to the Employment Tribunal was filed on 29 March 2012. In it he raised complaints which were not until the conclusion of the ET1 separately analysed as being claims under section 15 for discrimination arising in consequence of disability, or section 20 - discrimination by failing to make reasonable adjustments. In the central paragraphs 4, 5 and 6, which set out the facts upon which he relied to establish those causes of action he complained that following his diagnosis in 2007 he had been started in a new position with the Respondent from 2009. Though initially he had received good feedback in performance reviews once a new line manager, that was a Ms Docherty, was appointed he experienced difficulties. He complained she:

"Failed to understand his disability, made various comments demeaning his disability and subjected him to unrealistic performance targets; failing to take consideration of occupational health reports conducted by the respondent."

1. He averred that when he complained that he had difficulty performing his duties his line manager ignored it. At paragraph 5 he said that he was informed in late 2010 that he was to be formally placed on a Performance Improvement Required review. The Tribunal at the PHR having heard his evidence and no doubt taking into account the fact that in consequence of his stroke he had a difficulty in recollecting precise dates accepted as, as did the Respondent, that it was on 21 September 2011 that he was formally told that he was to be placed on a Performance Improvement Required review, but that he had been told about a year earlier that there would be an interim status as requiring performance improvement.

1. He complained in paragraph 5 that that had a negative effect upon him and at paragraph 6 of his ET1 he made reference to an occupational health report of October 2010 which argued that he should have had a reduced workload and was having problems with the speed and amount of work being given to him. It is plain, therefore, that factually he was asserting that he had had difficulties with his new line manager in respect of his performance and targets throughout the period from her appointment until his eventual retirement from ill-health.

1. He categorised the claims arising, as I have said, under both section 15 and section 20 of the Equality Act 2010.

1. The Tribunal asked at a case management hearing that the Claimant should provide further and better particulars; see page 44 of the bundle. He set those out through his legal adviser in a letter dated 23 August 2012. That referred to comments made between March 2010 and February 2011 via the line manager, Ms Docherty. It expanded upon the allegation he had made about being subject to onerous performance targets by saying that he did not have copies of those targets but that his perception was that the targets set and the way in which they were assessed did not take account of his disabilities, the effects his disability had on him and any deterioration in his condition and drew attention to the fact that in one of the occupational health reports on 15 October 2010 the adviser had recommended that he should have reduced performance targets at work. He complained (see 1(e) of the letter) that he regularly mentioned to his line manager between July 2010 and February 2011 that he was struggling to cope with his condition and consequently in performing his tasks and was ignored.

1. The Respondent asserted that the complaints, having been made on 29 March 2012, were out of time. In particular the latest act which could be identified was that of placing him upon a Performance Improvement Required status in September 2011. The hearing, which heard evidence from the Claimant alone and submissions from both parties, thus understandably focused upon whether putting the Claimant upon PIR status represented a continuing act. Section 123 of the Equality Act 2010 provides materially as follows, headed, "Time Limits":

"(1) Proceedings on a complaint within section 120 [this was such a complaint] may not be brought after the end of -

(a) the period of three months starting with the date of the act to which the complaint relates or;

(b) such other period as the Employment Tribunal thinks just and equitable."

Subsection 3 provides for the purposes of this section:

"(a) conduct extending over a period is to be treated as done at the end of the period …"

1. The question of whether conduct is to be taken as extending over a period has been subject to exploration in case law in respect of the predecessor cognate provisions in the discrimination statutes. The parties agree that the central statement of principle appears in the case of Hendricks v Commissioner of Police for the Metropolis [2002] EWCA Civ 1686. In that case the court considered whether a Tribunal had been right to accept that there was a continuing act when the complainant had alleged some 100 or so acts of discrimination against her from a number of different individuals during her service with the Metropolitan Police. The Employment Appeal Tribunal had looked to see whether her complaints were of separate acts or whether there was some policy or rule which linked them.

1. That approach was disapproved of by the Court of Appeal as focusing too narrowly upon the question of whether there was a continuing act. As Mummery LJ at paragraph 51:

"In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on "continuing acts" was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case …"

1. And he referred to Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21-23, Rovenska v General Medical Council [1998] ICR 85 at p.96, Cast v Croydon College [1998] ICR 500 at p.509 and contrasted the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 at p.841 where there was a:

"Accumulation of events over a period of time" and a finding of a "climate of racial abuse" of which the employers were aware, but had done nothing. That was treated as "continuing conduct" and a "continuing failure" on the part of the employers to prevent racial abuse and discrimination …"

1. He then commented at paragraph 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 side-tracked 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. Earlier he had observed that the claimant in that case was, in his view, entitled to pursue her claim beyond the preliminary stage on the basis that the burden was on her to prove either by direct evidence or by inference and primary facts that the numerous incidents of discrimination which she alleged were linked to one another and that they were evidence of a continuing discriminatory state of affairs covered by the concept of a "act extending over a period".

1. The Tribunal was addressed in respect of that authority and several others. The distinction was made to it, as had been drawn in Barclays Bank v Kapur [1991] IRLR 136 HL between a one-off decision and a continuing state of affairs. It had to be recognised that an act of discrimination such as the failure to appoint a person of a particular sex or race to a job would be bound to have continuing consequences but was to be regarded as a one-off act. By contrast making an employee subject to terms and conditions which continued throughout her employment as in Calder v James Finlay Corporation Ltd [1989] IRLR 55 was to subject her to an act continuing throughout her employment, and the date for a claim was not therefore to be such that time would start running from the time that the conditions were first imposed.

1. In the light of those authorities the Judge concluded that being subject to a Performance Improvement Required status exposed the Claimant to an ongoing state of affairs. That had lasted for as long as he was in employment. Although as it happened he had done no work since 4 February 2011 when he fell off work, he was nonetheless subject to that state of affairs. Accordingly, time only started running so far as the PIR status was concerned from the date he left employment. The originating application was made within three months of that; that was therefore within time.

1. The Judge plainly regarded that as relating both to the claim in respect of section 20 of the Equality Act and that in respect of section 15.

**The Grounds of Appeal**

1. On the appeal it is accepted that the Judge was entitled to take the approach he did to the PIR status insofar as it related to the section 20 claim. The position initially adopted in her submissions by Ms Vipond, who appears for the Appellant employer, was that there had been two distinct claims made in the ET1. Before the Judge Mr Macmillan who then represented the employer had noted at the outset of his submissions that the Claimant was asserting that matters were within time by focusing upon the section 20 claim; see paragraph 25 of the Tribunal decision. She argued that the ET1 was to be read such that paragraphs 4 and 6 were linked to the claim under paragraph 7 in respect of section 15 and paragraph 5 was linked to paragraph 8 of the claim under section 20.

1. When pressed from the Bench during the course of her submissions, she accepted that insofar as being subject to a PIR status could be the foundation for a section 15 claim, and she did not dispute that it might be, it was open to the Claimant to pursue that because she accepted that the Judge was entitled to regard the PIR status as a continuing act. Accordingly, both sections 15 and 20 claims were correctly held by the Judge to be available for consideration by a full Tribunal hearing. However, it was maintained that the Tribunal did not deal with the case which had been made to it by Mr Macmillan that the rest of the section 15 claim should be ruled out from such a hearing as being out of time. At paragraph 26 of its decision to the Tribunal had set out a submission by Mr Macmillan that the acts referred to in paragraphs 4 and 6 of the paper apart to the ET1 as expanded in paragraphs 1(a), (b) and (c) of the letter of 23 August 2012 were allegations which related to activity which occurred whilst the Claimant was actually working; that is no later than 4 February 2011. He argued they were separate and distinct acts. As such they were time-barred

1. The Judge, having set out the submissions made at length, focused in his discussion and disposal from paragraphs 42 upon the authorities and then from 47 to 50 upon the question of whether a Performance Improvement Required classification was an ongoing state of affairs. It was at paragraph 51 only that he perhaps dealt with the second matter which had been addressed to him in the submissions by Mr Macmillan. He said this:

"There might of course still be other issues of time bar arising in this case, in particular the alleged conduct of Ms Docherty as mentioned at paragraph 8 above. However, that could only be determined after evidence had been led and would therefore be an issue more appropriately addressed at the hearing on the merits."

1. The reference to paragraph 8 was a reference to the interim placing of the Claimant in late 2010 on a Performance Improvement Required status and comments which had allegedly been made by Lynne Docherty to him in June and July of 2010. The Judge said no more about those particular aspects of the claim.

1. I had at one time wondered whether the Judge had actually failed to deal with a claim put before him for determination. In the Notice of Appeal at paragraph 6.4(e) the employer points out, however, that the Employment Tribunal Judge appeared to deal with the claim at paragraph 51. Its complaint is that he gave no reason why he found that the claim was not time-barred, notwithstanding the dates which had been set out at paragraph 8 of the Judgment. It complains that the Judgment is not Meek compliant.

1. For her part Ms Bain, appearing for the Claimant to respond to this appeal argued that the events which were set out in paragraphs 1 to 6 of the paper apart, as detailed in the letter of 23 August 2012, were not separately allocated to, on the one hand, section 15 or, on the other, section 20. Therefore it was wrong to regard this case as containing two, as it were, watertight silos of separate claims. She did not regard the Judge's determination of the argument of Mr Macmillan as set out at paragraph 26 as being clear and was taxed with what was recorded as having been the submission made on behalf of Ms Kirkwood, then appearing for the Claimant, before the Judge as set out at paragraph 17.

1. Ms Kirkwood is recorded there in the second to last sentence as saying that she was not submitting that the employer's conduct prior to September 2011 was discriminatory. If that were so, then it would mean that she was not submitting that any of the acts which had been pled in the ET1 as relating to the behaviour of Ms Docherty were discriminatory.

1. It seems to me on reflection however that that sentence must not be taken out of context. The Tribunal decision must be read as a whole. There is no sign elsewhere in the decision that the Judge thought that the Claimant was in effect abandoning claims that the actions of Ms Docherty were discriminatory as he had alleged quite clearly in the ET1 and the subsequent correspondence. The context was the submission in respect of the imposition of the Performance Improvement Required status. Ms Kirkwood was no doubt attempting to establish the latest possible date she could for obvious reasons in the context of an argument on time. There had been a confusion created perhaps by the Claimant's inability with dates following his stroke as between what happened in September 2011 when he was formally placed on PIR and the events approximately a year earlier when interim measures towards that result had begun.

1. I do not regard this statement as being a repudiation by the advocate of the bulk of the earlier claim. That said, there is no record anywhere of a submission by the Claimant that the behaviour of Ms Docherty was linked clearly to the PIR such that inevitably once it was found that the PIR was constituted an act which continued until 30 December 2011, those earlier acts would also be within time as part and parcel of a series of such acts; that submission is notably absent.

1. Accordingly, what the Judge had to determine was first, and perhaps principally, whether the allegations in respect of section 20 and section 15 so far as the PIR status was concerned were brought within time. There is no appeal against his decision to that effect. But secondly, he had to explain why it was that he did not resolve the issues relating to the earlier comments.

1. In a case in which acts are alleged to be out of time but might together demonstrate that there is a continuing state of affairs which is productive of each of the separate acts as a manifestation of that underlying state of affairs, as for instance there might have been in Hendricks, there are three possible conclusions which a Judge could reach: (1) the allegations might be all within time as being part of a continuing act; (2) they might be out of time as being separate and distinct acts not linked in any arguable way; (3) it might not be possible at a Pre-Hearing Review to say whether they were so linked without at least hearing the evidence of the person alleged to have perpetrated them or evidence about their commission.

1. The Judge in paragraph 51 plainly determined on the latter course. He did not, in my view, sufficiently clearly set out that that was what he was doing although it is, as Ms Bain submits, properly to be inferred from what he said. He was dealing with the issue as the Notice of Appeal itself recognises but he did not give reasons for his conclusion that, insofar as the allegations under section 15 were concerned with conduct before September 2011 they should not be struck out at this point as out of time, but a decision on time should be reserved for later determination at the tribunal. In my view it would have been not only preferable that he should have done so but it was an error of law for him not to have done so. That is because it is well recognised (see the cases of Meek v City of Birmingham District Council [1987] IRLR 250 CA and Greenwood v NWF Retail that sufficient reasons must be given for the losing party to understand why they have lost on the argument. Such reasons are required as a matter of justice between the parties, they are necessary for any Appellate Court to understand the reasoning sufficiently to see whether there has been an error of law and they act as a useful aide memoir to the Tribunal itself to check that its reasoning is appropriate. Paragraph 51 here is insufficient.

1. Accordingly, it seems to me that on that basis and that basis alone this appeal should be allowed.

**Consequential Remedy**

1. The Appellant Employer reminds me of the powers of this Tribunal under section 35 of the Employment Tribunals Act to exercise the powers of the Tribunal from which the appeal has been brought. It is submitted by Ms Vipond that it would be quicker, less expensive and more convenient if I were to do so. For her part, Ms Bain, though initially referring me to the case of Morgan v Electrolux Ltd [1991] ICR 369, a case in which the Appeal Tribunal was criticised for having failed to remit a case of unfair dismissal for factual findings before the Tribunal, began as it seemed to me to resile from that position, such that, although I was unsure at the end of what she was saying whether she was asking me to decide here to exercise my discretion or remit, I think it was the former rather than the latter, coupled with a heavy rider that if I were to decide I should decide in favour of the Tribunal's view which was, she submitted, correct and appropriate.

1. In the light of those submissions and what I think Ms Bain was submitting to me, I accept that I should exercise the powers under section 35 myself.

1. This require me to exercise a discretion. This is a case in which nothing turns upon the particular merits at this stage. The question is whether the complaints are so obviously not linked to the PIR and so clearly distinct that they are undoubtedly out of time, and therefore cannot hope to succeed before a Tribunal, or whether they are so obviously within time and so obviously linked that they must succeed. There is a third position, which the Tribunal adopted at paragraph 51, though tersely, that it is too early to tell without hearing heard the full evidence.

1. I take these matters into account. First, what are asserted in the ET1 are not, as it seems to me, clearly separable factual allegations going distinctly on the one hand to section 15 and then the other to section 20. Paragraphs 4 and 5 in the paper apart flow together. Both effectively make complaints about the way in which the line manager was dealing with the performance of the Claimant which for reasons of his health he could not satisfy. Paragraph 6 is equally related to performance in that, as expanded in the later letter, what was in part relied upon was the doctor saying that the performance targets should be lowered to a level more achievable for someone in the Claimant's state of health. The comments allegedly made by the line manager might very well be distinct comments if they were made at all, but it seems to me quite possible, I say no more than that, that they might be linked to the job of the manager in ensuring the performance of the Claimant in his job, and thus they may together represent a continuing state of affairs: in summary, a determined approach by the employer to ignore the Claimant's disability and to treat him less well because of it. That is not to express any conclusion on the facts. It is rather to echo precisely what was said in the different context of Hendricks v Commissioner of Police for the Metropolis at paragraph 48, where Mummery LJ took the view that the Claimant there was entitled to pursue the claim beyond a preliminary stage of strike out application on the basis that the burden was on her (in this case him) to prove either by direct evidence or by inference from primary facts that the incidents which are alleged first happened and, second, if they did are linked to one another and, third, that they are evidence of a continuing discriminatory state of affairs which continued. In this case, that would be so as to form what might be described as a seamless whole together with the PIR.

1. I do not regard it as entirely unrealistic that such a decision might be reached, though the Claimant will have hard work to do to establish it. Beyond that I shall say no more than that, for those reasons, the Tribunal decision, though very briefly expressed, is entirely correct as set out at paragraph 51. One modification, however, must be recognised by the parties to what is said in the Tribunal decision. The formal Judgment is recorded as being that the claims of disability discrimination under section 15 and 20 are not time-barred. I should make it clear that I read the decision, and it is the effect of this Judgment, that the claims are not time-barred under both sections only insofar as the PIR status imposed in September 2011 is concerned. There has been no valid finding that any act prior to September 2011 is or is not time-barred: that remains to be determined.

1. For those reasons I allow the appeal because I accept that the Judgment is not Meek compliant. I substitute my own decision, as invited to do. The effect of my Judgment is, I suspect, to leave the decision of the Tribunal Judge as it was but to clarify what it was he was actually deciding.