Appeal No. UKEAT/0096/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 March 2010

Before

THE HONOURABLE MR JUSTICE WILKIE (SITTING ALONE)

THE ROYAL BANK OF SCOTLAND PLC (APPELLANT)

MS C McLELLAND (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR E J GILLIGAN (Solicitor)

Messrs Brodies LLP Solicitors
15 Atholl Crescent
Edinburgh
EH3 8HA

For the Respondent
No appearance or representation by or on behalf of the Appellant

SEX DISCRIMINATION: Continuing Act

PRACTICE AND PROCEDURE: Preliminary Issues

Pre-hearing review concerning whether sex discrimination claim was in time. Whether a post termination review process could be a continuing act.

1. This is an appeal by the Royal Bank of Scotland PLC against a decision of Employment Judge Vinecombe at Leeds made at a hearing on 20 November last year when he decided, amongst other things, that the Claimant's claim alleging sex discrimination should proceed to a full hearing to determine whether the acts complained of amounted to sex discrimination, whether the claim was presented in time and, if not, whether it is just and equitable for the Tribunal to hear the case.

1. The Respondent to the appeal, the Claimant before the Employment Tribunal, Ms McLelland, has not attended nor have I received any submissions from her or on her behalf. When the case was first listed before me I had the Employment Appeal Tribunal office make it known to the parties that I am a customer of the Royal Bank of Scotland, in order to determine whether either party saw any potential conflict in my hearing this appeal, I am satisfied that each of them has made it clear that they have no such objection to my hearing the appeal. Nor do I see any good reason to recuse myself so I have heard it.

1. The claim made by Ms McLelland, included a claim of discrimination, as appears from Part 6 of the ET1 where she ticked the box indicating that she believed that she had been discriminated against. She further indicated that she was complaining about discrimination on the grounds of sex. In the part of the ET1 where she is asked to describe the incidents which she believed amounted to discrimination and so on, she referred to her extended grounds of complaint.

1. Her ET1 stated that she was represented by Berwins Solicitors, at their office in Harrogate. The Claimant lives in Wetherby. It appears, however, that the extended grounds of complaint were drafted by the Claimant because, throughout, it reads in the first person and, with due respect to her, it does not read as a document settled by a lawyer. It extends over four pages of narrative, none of the paragraphs being numbered, however, helpfully, someone, it may be in the Appellant's offices, has allocated informal numbers to that document and I refer to that numbering.

1. Her narrative begins with her having taken early retirement on 11 November 2007. Her complaint covers a period of 18 months, from a date in 2005 until what she calls her "retirement" in 2007. Her narrative reads, insofar as it is relevant, as follows:

"(8) For an 18 month period from 2005 until my 'retirement' in 2007 I was in limbo. Little or no effort was deployed by my employer to look into or provide suitable alternatives for me. I was required to change roles on numerous occasions and accept temporary positions despite the fact that they were demonstrably unsuitable. There seems to have been some perception that I wanted to remain employed at RBS doing almost anything in preference to being made redundant. That was not the case. I would far rather have accepted redundancy than be moved from pillar to post in unsuitable roles and then finally have to take early retirement because nothing else was offered.

(9) The way in which I was treated was inconsistent, unfair and unreasonable. I have repeatedly sought an explanation as to why I was treated so very much less favourably than certain of my colleagues and to date no such explanation has been forthcoming. As such, I can only assume that there is some unknown (but potentially discriminatory) factor that has been operative in my case. Those other individuals were employed in the same role as I was (Centre Manager) (albeit at other centres) and had the same grade and due to the decision to have one manager overseeing a number of centres rather than just one, were in exactly the same position as I was - namely performing a role that was redundant.

Each time I have asked why I haven't been treated the same as other people RBS has hidden behind confidentiality, claiming that the circumstances were different. I can't help but wonder whether I was treated differently because I had made it clear that I was keen to improve my work-life balance, decrease my travel time and in particular, reduce time spent away from home and family. I don't think a man in this situation would have been treated in this way - or a woman with no family obligations.

(10) Even though it has subsequently been accepted (in the written letter determining the final outcome of my grievance, dated 4 June 2009) by RBS that they did not treat my case in line with their own policies and that other staff in similar circumstances to me were offered generous redundancy packages, RBS has not taken any steps to compensate me for the fact that I have suffered considerable financial loss as a result of the anomalous way that I have been treated. In the grievance outcome letter it states: 'I have decided to uphold the element of your grievance that you should have been offered redundancy terms. This offer should have formally been made to you at the end of the ACE pilot'.

As such, where is the RBS offer to compensate me for the losses that I have suffered as a result of taking early retirement as opposed to what I would have received had RBS treated me in the way they now accept they should, namely by offering me redundancy?

…

(11) I first raised a grievance about what had happened in writing on 11 November 2007. Richard Helmsley (Chief Executive, Manufacturing) responded in writing on 28 November 2007. His letter contained numerous factual inaccuracies. Grievance meetings subsequently took place on 29 February 2008, 15 September 2008 and 27 November 2008. The internal grievance procedure was only finally concluded in June 2009 when I received an outcome letter dated 4 June 2009. (This is the final stage of the internal process and the outcome is one against which I have no further right of appeal - a fact specifically referred to in the letter.) I believe that the entire process has been unreasonably drawn out and even despite the length of the procedure I am not convinced that it has been thorough or fair.

In any event, I have not been in a position to lodge this claim until now because an internal procedure was still ongoing and I knew I needed to exhaust all internal avenues before taking any legal action. In fact I'd hoped that RBS would finally see sense without me having to take the step of lodging a claim but despite the fact that they accept that they were in the wrong, I have heard nothing further from them since the letter of 4 June. This situation has not only caused me financial loss but has been seriously detrimental on my health, well-being and confidence."

1. The Appellant, in its ET3, took the point that the claim made by the Respondent was out of time. That was on the basis that if the last act complained of was her "retirement" in November 2007, then her application to the Tribunal, which was dated 5 August 2009, would be long out of time. Accordingly, the primary contentions of the Appellant were that the application was out of time and that it was not just and equitable for time to be extended. As a consequence of this point being taken, the Tribunal, of its own motion, had the matter listed for a pre-hearing review, at which those issues would fall for determination. Notice of that hearing was given on 21 September by an order of the Tribunal.

1. In advance of that hearing, the Appellant requested additional information set out in a request for additional information dated 13 October and sent to the Respondent's solicitors. Those solicitors, on 22 October, indicated that they anticipated being able to revert to the Appellant with a response by 27 October. On 23 October the Appellant, dissatisfied with that response, applied to the Tribunal for an order that she provide that further information.

1. On 2 November the Respondent's solicitors wrote to the Tribunal indicating that the advice they had received from counsel was that the Appellant was entitled to most, although not all, of the information sought and that they would be in a position to provide those answers by no later than 13 November, which would be one week in advance of the pre-hearing review which had been fixed for 20 November. On that basis they asked the Tribunal not to make the order which was being sought. On the following day, 3 November, the Appellant wrote to the Tribunal objecting to the Respondent's application for an extension of time indicating that they felt that no reason had been given why the information should not be provided earlier than 13 November.

1. On 9 November the Employment Tribunal notified the parties of a decision made by Employment Judge Grazin, who decided not to make an order for full information or disclosure, indicating that that application could be reviewed at the pre-hearing review/case management discussion if appropriate. The pre-hearing review would remain listed on 20 November. The Respondent's solicitors then wrote on 10 November, in the light of the Employment Judge's order already referred to, that they would not be providing any of the further information sought until directed and ordered to do by the Tribunal.

1. On 13 November the Appellant wrote to the Tribunal seeking a postponement of the hearing of 20 November and its substitution with a case management discussion. One of the matters to be determined would be the request for additional information which they required prior to the hearing on the time bar point. That application for a postponement of the pre-hearing review and its substitution by case management discussion was responded to by the Tribunal on 18 November. Employment Judge Burton ordered that the postponement request be refused. The pre-hearing review would proceed as listed. The further information requested did not need to be provided in advance of the hearing and the case remained as listed for 20 November.

1. On 19 November, the day before that hearing, the Respondent's solicitors wrote to the Appellant enclosing a witness statement in respect of the Claimant which they intended to rely on at the pre-hearing review. The copy which I have in the bundle is unsigned. I know not whether a signed copy was presented to the Tribunal but it is plain that the statement was before the Tribunal and was said by the Respondent to constitute her evidence. That statement contained a rehearsal of a number of the matters during the period from 2005 until 11 November 2007. She then rehearsed, briefly, the course of the grievance and, at paragraph 14, indicated that she learnt of the outcome of the review in mid-June 2009. She said that was to the effect that, although it was agreed that she should have been offered redundancy, no compensation was to be forthcoming. She then rehearsed how she sought out a suitable legal advisor, instructed Berwins on 17 July, having first made contact with them on 10 July, and, between 17 July and 5 August, was working with them to produce the ET1.

1. Her witness statement concludes in the following terms:

"15. The grievance process took an unreasonably long time in my view - from my raising the grievance in November 2007 it took nearly 19 months for the outcome to be advised to me and this is I believe contrary to the statements on the Respondent's own policy which emphasises in a section entitled 'Timescales' that 'All reasonable steps should be taken to resolve the grievance as quickly as possible'. I do not think that this has been applied to my situation.

16. I feel as though the way I was treated during my employment continued throughout the grievance procedure and the outcome was part and parcel of the same state of affairs - I was an unwelcome nuisance and nobody knew what to do with me. Kevin quite clearly just wanted rid of me out of his Leading the Way team and despite my having had 34 years of unblemished service with the Respondent he subjected me to performance management and treated me as an under-performer. I strongly suspect that the reason I was treated as I was (ie not offered a redundancy package) and the reason the grievance procedure was as drawn out as it was (and the conclusions it arrived at) was because I had raised complaints (both before and after my employment terminated) about the way I had been treated (both by Kevin specifically and by the Respondent generally) and the fact that I considered the Respondent to have breached its legal obligations to me. I do wonder whether they hoped that by drawing out the procedure, I would just give up."

1. The Employment Tribunal, Employment Judge Vinecombe, briefly set out the facts including her resignation. He records that in the normal course of events she should have presented her claim to the Tribunal by a date early in 2008 but that, in respect of certain of her claims, that time was extended by three months because she had raised a grievance. He then records that the grievance, having been raised in November 2007, was not formally resolved until June 2009 when it was dismissed. He also records that that the Claimant was aware in November 2007 that she had a potential claim against the Respondent. He set out the fact that she had instructed solicitors in July 2009, and that the application was presented to the Tribunal on 1 August 2009. The reason it was not lodged before then was because she was awaiting the result of her grievance. He then set out the submissions of either party.

1. The Claimant submitted that the grievance procedure and the way it was conducted amounted to a continuing act and, as the claim was presented within three months of the final conclusion of the grievance procedure, namely June 2009, the claim was presented in time. The Respondent submitted that the grievance procedure did not amount to a continuing act, that the claim presented to the Tribunal was out of time and that it would not be just and equitable to allow the claim to continue.

1. It is clear that the Tribunal received the witness statement of the Claimant which had been served the day before the hearing, notwithstanding the fact that the question of postponement had been canvassed in correspondence and had been decided against the Appellants in respect of the provision of further information to which I have already referred. Mr Gilligan accepts that no application was made at the hearing of the pre-hearing review for it to be adjourned by reason of the late production of the witness statement, although he indicated that the person representing the Appellant, Ms Forrest, did raise the question of due notice of what was being complained of in the context of the late production of the witness statement.

1. The Tribunal set out its conclusions. It identified the issue whether the grievance procedure was part of a continuing act within section 20A(3) of the Sex Discrimination Act 1975. It says as follows:

"8. The Claimant relies on the fact that the grievance procedure was drawn out as evidence of a continuing act of sex discrimination. She suspects that the reason it was drawn out was because of the complaint that she had raised about the way that she had been treated. In her application to the Tribunal, she complained that she had not been treated in line with the Respondent's policies and was treated differently to other staff."

1. The Tribunal, in paragraph 9, identified the way it approached the issue before it. It was not for the Tribunal, at a pre-hearing review, to decide whether the way in which the grievance procedure was conducted was or was not a continuing act. It was sufficient to conclude that it could amount to a continuing act, if the Claimant's evidence with regard to these matters were accepted by the Tribunal which heard all the evidence and if it was referred to the relevant documentation.

1. In effect, what the Employment Judge was doing, in those two sentences, was directing himself on the difference between: on the one hand, considering whether the grievance procedure was part of a continuing act as a Tribunal, hearing the claim, and dealing with the time point as a preliminary issue; and, on the other hand, considering whether the claim should be struck out, at a pre-hearing review, as having no reasonable prospect of success on the grounds that it was manifestly out of time. Such an argument would be because there was no reasonable prospect of success in the Claimant establishing that what happened in the grievance procedure was part and parcel of a continuing act.

1. The Tribunal concluded that this was not a case where there was no real prospect of success in the Claimant establishing that what happened during the grievance procedure was a continuance of the discriminatory treatment of which she was complaining throughout the period from 2005. The Tribunal concluded that the claim for sex discrimination should proceed to a hearing before a full Tribunal which would hear the evidence and would decide whether the way the grievance procedure was conducted was part of a continuing act. If it was not, then the Tribunal would have to decide whether it would be just and equitable to assume jurisdiction. If it did, it would consider the substance of the case.

1. Mr Gilligan accepts that the approach of the Tribunal, given that it was conducting a pre-hearing review, is not to be criticised. He accepts that the question was whether there was any reasonable prospect of the Claimant demonstrating that the grievance procedure, and the way it was conducted, was part of a continuing course of conduct or a continuing act. He accepts that, if the Tribunal could lawfully reach such a conclusion, then the way in which it dealt with it - leaving the ultimate decision whether it was or was not a continuing act, to a full Tribunal could not be criticised. His complaint is that the Tribunal erred in law in reaching that conclusion and he does so by saying that the Tribunal could not find that there was, in relation to the grievance procedure or the grievance process, a pleaded act said to amount to sex discrimination.

1. He relies on a number of authorities in support of this proposition. In particular, he refers to the decision of the EAT, the President, Underhill J, presiding in Olasehinde v Panther Securities PLC UKEAT/0554/07/ZT. At paragraph 26 the President said this:

"It is of prime importance in any discrimination case that the Claimant should clearly identify, and (save in exceptional circumstances) formally plead, each act of which he or she complains as an act of discrimination: see Chapman v Simon [1994] IRLR 124."

1. He also refers to a passage in the case of Stockton On Tees Borough Council v Aylott [2009] ICR 872 at paragraphs 127 and 128 which reads as follows:

"Neither the claim form nor the letter of 26 February 2008 raised complaints about a failure to make reasonable adjustments in regard to 'deadlines and the insistence on formal investigation of incidents'. The Tribunal had no jurisdiction to make findings of failure to make reasonable adjustments in relation to these matters. Our observations in relation to the jurisdiction of the Tribunal to hear complaints about matters other than relating to the Claimant's dismissal apply to Mr Menon's challenge to its jurisdiction to hear complaints of failure to make reasonable adjustments."

1. He also relies on a line of authority which concerns fair notice that a particular matter is being relied on and, in particular, the decision of the Employment Appeal Tribunal in Ladbrokes Racing Ltd v Traynor UKEAT/S0067/06/MT in which the EAT, Lady Smith presiding said at paragraph 19:

"It is, thus, plainly important that, if procedural unfairness is being alleged, the employer has fair notice of the allegation so as to enable him to prepare his case to overcome it, if he can. Fair notice involves clear and cogent notice that the matter is being relied on by the employee in his Employment Tribunal claim."

A little later on, referring with approval to a comment of Waller LJ in the case of Ali v Office of National Statistics [2005] IRLR 201, where he said as follows at paragraph 39:

"… a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states"

and a little further on in the EAT judgment at paragraph 40:

"The Tribunal's decision is further flawed by its having been influenced by a view that the Respondents should have 'seen it coming' because of what was in the documents and then, as explained in their reasons, that the Respondents were 'not entirely unfamiliar' with the matters raised because criticisms of procedural irregularity had been raised at the disciplinary hearing. If the first of these propositions was correct, then the parties would require to prepare for cases on the basis that their opponent will be able to rely on any case that could be made against them out of the material in the documents lodged whether or not it is foreshadowed in the ET1 or 3. That would not be fair or just. Each party is entitled to approach the hearing on the basis that the case they have to meet is that of which notice is given in the ET1 or 3."

1. These authorities are, of course, plainly right and, although the Tribunal jurisdiction is one in which a degree of informality is to be permitted, nonetheless it is important that the documents setting out the claim identify with sufficient clarity the complaints made in order that the respondent knows the case that it needs to meet. No point has been taken by the Appellant that the complaint of sex discrimination is insufficiently pleaded so as to amount to a complaint of sex discrimination properly placed before the Tribunal. They are seeking further information, but that is to elucidate what is accepted as a complaint properly placed before the Tribunal. There is an explicit complaint of sex discrimination. The passage described as paragraph 9, which I have read out, is, in one sense, a classic statement of how a complaint of discrimination, in this case on grounds of sex, may be established, that is to say an complaint is made of inconsistent, unfair and unreasonable treatment, of being treated very much less favourably than certain colleagues without any explanation. This in turn gives rise to an inference that discrimination is the reason for the different treatment.

1. In my judgment, the subsequent paragraphs and, in particular, the paragraphs described as paragraphs 10 and 11, are capable of enabling a Tribunal to conclude that what is described in paragraph 9 as implicitly discriminatory conduct, is continued throughout the grievance process. Furthermore, at the end of the grievance process, her complaint is of being treated differently from other staff in similar circumstances. She complains that at the end of a very long drawn out grievance procedure, even after, she claims, her ex-employer accepted that she had been treated differently, they, nonetheless, failed to do anything to put it right. Having subjected her, as she would say, to an inordinately extended and delayed process, it ended with the unsatisfactory outcome which she describes.

1. In my judgment, the Employment Judge cannot be said to have approached the question in an erroneous way in law. Nor can he be said so badly to have misread the ET1 that the conclusion he reached, that this could be found to be a continuing act extending up to the end of the grievance process, was either perverse or evidence of a misdirection of law.

1. The arguments deployed by Mr Gilligan are available to the Appellant to deploy before the full Tribunal, which still has to address the question whether the events involving the grievance procedure and its conclusion, amount to a continuing act so as to render all of her complaints from 2005 in time.

1. In my judgment, it would be wrong to categorise the conclusion of Employment Judge Vinecombe that her complaints were capable of constituting a continuing act as erroneous in point of law or perverse. Therefore, in my judgment, this primary limb to the Appellant's appeal fails.

1. For the sake of completeness, Mr Gilligan sought to argue that, if he succeeded on his primary contention, then not only would that mean that this Tribunal should conclude that the application was out of time but was also in a position to conclude that it would not be "just and equitable" for a time to be extended. He referred me to a number of longstanding authorities in relation to just and equitable extension of time, which set out the factors to be considered and the general approach. He referred me to British Coal Corporation v Keeble [1997] IRLR 336, Robertson v Bexley Community Centre [2003] IRLR 434 and the Chief Constable of Lincolnshire Police v Caston UKEAT/0530/08/JOJ. It seems to me that, even had I been with Mr Gilligan on his primary submission, I do not have before me sufficient material to enable me to reach a firm conclusion on the "just and equitable" issue. The general principles stated out in these authorities are, of course, general principles and have to be applied to the specific facts of specific cases and I am not in a position to do so.

1. Mr Gilligan and his clients are concerned at the disproportionate impact of having a time bar point determined at the beginning of a four day hearing convened not only to consider that point, but also to consider the substance of the case if the time bar point does not succeed. I think they are rightly concerned not to have to prepare for a four day case when it may be that the application is out of time and will be dismissed on that basis. In my judgment, his clients would have a good argument for approaching the Tribunal administration to seek to list the time bar point before a Tribunal as a preliminary issue to be determined on the limited evidence which will be required on that issue and to sever that preliminary issue from the hearing of the substantive case. Such an arrangement, in my judgment, would serve the overriding objective by ensuring that, if the case is to be disposed of on a procedural point, the parties are not put to the costs and trouble of preparing for a substantive hearing when such may not be required.

1. Of course, that is essentially a matter for management by the Tribunal of its own procedures and, given that Ms McLelland is not here and this is not a point which has been canvassed, I would not dream of directing that the case should proceed in future in that way. I simply indicate that it seems to me that, given the issues in the case, it might be a sensible course for the Employment Tribunal to be asked to adopt.