England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge H Wilson)

		Royal Courts of Justice Strand London WC2 Monday, 19th February 2001

Monday, 19th February 2001

J U D G M E N T
1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Alexander Fadipe in person.
2. The background to these proceedings can be briefly explained. Mr Fadipe was on the books of an employment agency, Reed Nursing Personnel, who provide temporary nursing staff to NHS Trust hospitals. Mr Fadipe is an auxiliary nurse. He was supplied on temporary assignments by Reed Nursing Personnel to hospitals between 22nd January 1999 until his services were terminated by Reed Nursing Personnel on 4th June 1999.
3. On 17th November 1999 Mr Fadipe presented a complaint to the Employment Tribunal. The type of complaint which he said he wanted the tribunal to decide is in box 1 of the form:

"1.Unlawful provision of `unsatisfactory reference'.

2.Unfair dismissal."

4. In box 4 he gave the dates of his employment as "7th January 1999 to 4th June 1999". In box 6 he stated that the job he did for his employer was: "Auxiliary nurse (nursing assistant)". Box 9 is important because it says this:

"If your complaint is not about dismissal, please give the date when the matter you are complaining about took place."

5. On that he put: "7th September 1999".
6. The details of the complaint are set out in box 11. I will read them out, because they are important for the understanding of the decisions which were later made by the Employment Tribunal and the Employment Appeal Tribunal and for the understanding of Mr Fadipe's arguments today:

"1.On 13th July 1999, I was offered employment as a day care assistant with North Westminster Care Services, which is under the Social Services Department of the City of Westminster Council, subject to the receipt of satisfactory references. But on 7th September 1999, I was informed in writing that one of the references received was `unsatisfactory to the Council'. This unsatisfactory reference upon further query turned out to be the one provided by Reed Nursing Personnel, even though my work was satisfactory, and both them and their clients never had any cause to complain about my work.

2.On 4th June 1999, I received a letter unfairly terminating my work with Reed Nursing Personnel, because I had written a letter to the Chief Executive of Reed Personnel Services Plc, dated 4th May 1999, in which I complained of being maltreated, harassed and persecuted. In this sad letter of unfair dismissal, it was claimed that the clients of Reed Nursing Personnel had instructed Reed Nursing Personnel not to put me forward for further assignments with them. This was totally false, and was just a framed up excuse to unfairly dismiss me. At the time of occurrence, I did seek help from a solicitor at Paddington Law Centre, but she was extremely unhelpful, and informed me in letter dated 10th June 1999, that it will be difficult for me to take legal proceedings against Reed Nursing Personnel, and advised me to look for another job."

7. Reed Nursing Personnel served a notice disputing the claims. In their notice of appearance they said they were going to resist the application. The grounds on which they intended to do so were these. First, they admitted that Mr Fadipe was a temporary auxiliary nurse, working on a number of assignments between the dates mentioned. They referred to the letter of 4th May to the Chief Executive, which set out various allegations and complaints against the staff of Reed Nursing Personnel and the staff of NHS Trust hospitals. The letter was forwarded to the NHS Trusts to enable them to investigate the allegations and complaints against staff, and Reed contended that, as a result, they received a request not to supply Mr Fadipe on temporary assignments in the future to those NHS Trust hospitals. They contended that, as an employment business, they could not guarantee to provide a temporary worker with work, and they were not in a position to force a client to employ or continue to employ any particular temporary worker, particularly where the client had indicated that it did not wish to engage the temporary worker on future assignments.
8. Reed said they had invited Mr Fadipe to attend a meeting on 21st May and he was informed at the meeting that his allegations and complaints were being investigated by Reed and the NHS Trusts against whose hospitals he had made complaints. He was also informed that Reed had been requested not to supply him as a temporary worker to those trusts. At the meeting it is alleged that he accused Reed of inciting NHS Trust hospitals to conspire against him by getting a patient to kick him to make him lose his temper.
9. On 4th June Reed wrote to Mr Fadipe, informing him that they had looked into his complaints and could not find any evidence of the "evil conspiracy" which he had alleged in the letter of 4th May. They informed him that he was clearly unhappy with Reed, the relationship of trust had broken down and they were unable to assist him to search for further temporary work.
10. On the question of the reference, Reed agreed that they had supplied a reference in respect of Mr Fadipe in response to a request of 13th July 1999 from North-Westminster Care Services; but it was denied that the reference was unsatisfactory. A copy of the reference was attached to the notice of appearance, which was on Reed Nursing Personnel notepaper. It was headed "Re: Alexander Fadipe" and was addressed to the manager of North-Westminster Care Services in these terms:

"I can confirm that Alexander Fadipe registered with Reed Nursing Personnel on 7 January 1999 as an auxiliary nurse. Whilst we had no complaints about his standard of work we would not be prepared to offer him any future assignments. If you have any queries please do not hesitate to contact me."

11. Mr Fadipe alleges that it was as a result of that reference that he did not get the job with North-Westminster Care Services. But he only discovered this on 7th September 1999.
12. In the circumstances which I have summarised, Reed Personnel denied that Mr Fadipe had been unfairly dismissed, as alleged, or at all, and contended that he did not satisfy the qualifying period for a claim for unfair dismissal.
13. In the light of the allegations made by Mr Fadipe and the response of Reed, the tribunal held a pre-hearing review on the 3rd February. At the pre-hearing review they heard Mr Fadipe in person and a solicitor on behalf of Reed. They expressed the view that it was not a case in which they could decide the merits of the case without a further hearing and that it was not a case in which it was appropriate to order a deposit. They said that their reason for not ordering a deposit was that the recent case of Coote v Granada showed that an argument might be advanced relating to an unsatisfactory reference, and the tribunal hearing the case in full would have to consider whether it had jurisdiction to hear the claim in relation to the unsatisfactory reference, as well as the claim for unfair dismissal.
14. The hearing took place on 17th April 2000. Again, Mr Fadipe represented himself. Reed were represented by counsel. The extended reasons for the decision of the tribunal, which were sent to the parties on 5th May 2000, recorded the unanimous decision of the tribunal that the applications should be dismissed, first, because the claim for unfair dismissal was out of time and, secondly, because the claim relating to the provision of the reference was not within the jurisdiction of the tribunal.
15. In the extended reasons it became apparent that the case might not be any ordinary unfair dismissal case, because, although the normal period which is needed to qualify for bringing an unfair dismissal case is 12 months of continuous service, as required by section 108 of the Employment Rights Act 1996, there are exceptions to the 12 month qualifying period. It was recorded in paragraph 3 of the extended reasons that Mr Fadipe stated that he was basing his claim on the fact that he had asserted a statutory right and that this was a health and safety case and he was unfairly dismissed for one of those reasons and that, by reason of the special statutory provisions is sections 100 to 104, no minimum qualifying period of employment was required. The tribunal said this:

"... . If the Tribunal finds that Mr Fadipe was dismissed for a heath and safety reason or for the assertion of a statutory right, then the dismissal is automatically unfair."

16. The tribunal went on to point out, however, that the right to claim unfair dismissal must be exercised within three months of the effective date of termination of the employment. That is a requirement of section 111 of the 1996 Act.
17. Mr Fadipe was notified of the termination of his services with Reed on 4th June 1999, but did not present his originating application to the tribunal until 17th November 1999. So he was more than two months late. It was on that ground that the tribunal held that his unfair dismissal claim should be refused as being outside the jurisdiction of the tribunal. The tribunal do not have jurisdiction to hear unfair dismissal cases, for whatever reason the unfair dismissal has occurred, if the claim is presented more than three months after the date beginning with the effective date of termination. That is provided by section 111(2)(a). Under subsection (b) there is power in the tribunal to extend the period for such length of time as it considers reasonable where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.
18. In this case the tribunal refused to extend the three month period; and they explained in paragraph 7 of the extended reasons why they would not exercise their discretion. They also explained in that paragraph why they rejected Mr Fadipe's contention that this was a case of a continuing act which took the case outside the normal three month requirement from the date of dismissal. Mr Fadipe's contention was that the detriment he had suffered as a result of the dismissal was continuing, that there were continuing acts against him and that he had presented the application to the tribunal within three months of the last continuing act.
19. The tribunal dealt separately with the claim relating to the provision of a reference. Their conclusion on that was that the tribunal had no jurisdiction to entertain it. They said there was no absolute right for an employee or ex-employee to demand a reference and there was no absolute obligation on an employer to provide one. If a reference is provided, it must be fair, truthful and accurate. If it is not, the employee may have a claim against the employer in respect of the reference at common law. The only possible exception noted by the tribunal was the case of Coote v Granada Hospitality Ltd 1998 IRLR 5656, a case which was referred to the European Court of Justice.
20. The tribunal interpreted the decision in that case as relating only to complaints of victimisation following a case of discrimination - in that case sex discrimination. They said it was apparent that the case of Coote derived from a claim of sex discrimination. There was no complaint of either sex or race discrimination in the present case. It was for those reasons that the tribunal held that it had no jurisdiction.
21. Mr Fadipe then took the case to the Employment Appeal Tribunal, where it was dealt with at a preliminary hearing. In giving the judgment on behalf of the Employment Appeal Tribunal, His Honour Judge Wilson, having heard Mr Fadipe in person, set out passages from the extended reasons and concluded, in paragraph 5:

"We can find no legal fault in the way in which the Tribunal reached its conclusions and we can see no prospect of success were this appeal to proceed to a full hearing and accordingly it must be dismissed at this stage."

22. Permission to appeal was not granted; and so Mr Fadipe made the application for permission to appeal to this court. In order to succeed in his application he has to show, first, that his appeal has a real prospect of success, and, secondly, that the point on which he has a real prospect of success is a point of law arising from the decision of the Employment Tribunal. There is no appeal from the decision of an Employment Tribunal to the Employment Appeal Tribunal or to this court on a question of fact. It is also, I should point out, very difficult to appeal against the exercise of a discretion, such as that which a tribunal exercises in relation to extensions of time. In order to appeal against the exercise of a discretion it is necessary to show that the tribunal committed an error of principle or failed to have regard to relevant factors in deciding how to exercise its discretion.
23. Mr Fadipe has presented his arguments this morning very clearly and forcefully, and he has made points under both aspects of his claim. I will deal with them separately.
24. First, the unfair dismissal claim. Mr Fadipe's main point is that he brought his unfair dismissal claim within time because there were here continuous acts and a continuous detriment, which cannot be separated from one another, and he brought his claim on 17th November 1999, within three months of the last continuing act or acts extending over a period. That is the date which he specified in his complaint as 7th September 1999. The significance of that date is that that is the date on which he had become aware that he had lost the offer of employment; and he said that the reason he had lost that offer was the provision of the unsatisfactory reference by Reed Nursing Personnel following the request of a reference from the prospective new employer.
25. Mr Fadipe agreed that he was not bringing his case under any of the discrimination laws, which all contain provision in their time limit sections that an act extending over a period is treated as done at the end of that period, so that the time limits of three months, beginning when the act complained of was done, run from the last of the continuing acts to be committed. Mr Fadipe said that this concept also applied to a case of unfair dismissal. His case of unfair dismissal was a health and safety case under section 100; and he referred to the passages in his letter of 4th May 1999 which raised health and safety considerations in relation to the treatment which he had received in one of the hospitals.
26. In my judgment, Mr Fadipe has a serious difficulty in the way of succeeding on the unfair dismissal claim. That is because section 111 governs the remedies for unfair dismissal and provides quite clearly what the time limit is. It says:

"(1)A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer.

(2)Subject to subsection (3), an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal-

(a)before the end of the period of three months beginning with the effective date of termination, or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

27. Subsection 3 is not relevant to this case, dealing with the question of the giving of notice. Nothing is said in any part of section 111 about acts extending over a period or the three month limitation period running from the end of any act extending over a period.
28. In this case the effective date of termination was, as Mr Fadipe inserted in his own complaint form, 4th June 1999. More than three months expired before he presented his complaint of unfair dismissal; and the tribunal, in my view rightly, concluded that it was reasonably practicable for Mr Fadipe to present his unfair dismissal claim within the three month period. The evidence showed that he had in fact, within that period, taken legal advice, but the unfair dismissal claim was not presented until 17th November. It is not possible, in my view, to extract from section 111 the same kind of provision as is to be found, for example, in section 68(7)(b) of the Race Relations Act 1976 or in the equivalent provision of the Sex Discrimination Act 1975, which enable the three month period to be calculated from the date of the last act which has continued over a period.
29. Parliament has taken the view that a dismissal occurs at a point in time. It is true that it has consequences that endure over a longer period: being dismissed (losing your job) has enduring consequences or continuing detriment, because one is out of a job and may not be able to find another one. It does not, however, mean that the concept of a continuing act or an act extending over a period is appropriate for unfair dismissal cases. On that part of the application I would therefore refuse permission on the ground that section 111 is a bar to continuing with the claim. The tribunal is told by Parliament that it will not consider a complaint presented outside the period unless it extends it. In my judgment the tribunal reached the right conclusion in saying that this was presented out of time. They were also entitled in the exercise of their discretion to refuse to extend time on the basis that it had been reasonably practicable for Mr Fadipe to present the case within time.
30. I have, however, reached a different conclusion on Mr Fadipe's separate complaint that he has a claim in respect of the reference. At this stage it is not appropriate to investigate the merits of this complaint. The sole point is whether the Employment Tribunal were correct in holding that they had no jurisdiction to determine it. This complaint, if it is maintainable in the tribunal, was presented in time. It would not be reasonable to expect Mr Fadipe to present a complaint about the loss of a job opportunity before he knew that a reference had been given which led to the loss of that opportunity. Here he is correct, in my view, in his submission that if the tribunal does have jurisdiction, he has invoked it within the three month time limit.
31. The crucial question is whether the tribunal made an error of law in their extended reasons in saying, in their interpretation of Coote v Granada Hospitality Limited, that they had no jurisdiction to entertain this type of complaint. In my view, the position is not as clear as the Employment Tribunal regarded it. I would grant permission for this part of the appeal to proceed.
32. The basis of Mr Fadipe's argument is that section 44 applies to health and safety cases and is part of Part V of the 1996 Act, seeking to protect employees from suffering detriment in employment. He relies on section 44(1)(c) as giving him the right not to be subjected to any detriment by any act on the ground that is there mentioned. He says he has been subjected to detriment in the form of an unsatisfactory reference, which I have already read out. He also relies on the provisions of the Council Directive of the Council of Ministers 89/391/EEC, which provides for the introduction of measures to encourage improvements in the safety and health of workers at work. As I have already explained, this is a point on which Mr Fadipe seeks to base his substantive complaint. The provisions of Article 4 of the directive state:

"1.Member States shall take the necessary steps to ensure that employers, workers and workers' representatives are subject to the legal provisions necessary for the implementation of the Directive."

"2.In particular, Member States shall ensure adequate controls and supervision."

33. Mr Fadipe also relies on Article 11, which deals with the consultation and participation of workers on all questions relating to safety and health at work.
34. Mr Fadipe also relies on the reasoning of the Court of Justice in the case of Coote as giving him support. He contends that both the Appeal Tribunal and the Employment Tribunal failed to apply the general principle laid down by the Court of Justice in Coote, that general principle being that it is unlawful for an employer or an ex-employer to take retaliatory action against an employee or ex-employee in victimising the employee or ex-employee's for his attempt to enforce or assert a statutory right under which the law provides him with due protection, even in cases where the employment relationship has ceased, as in the case of non-provision of a reference or in the provision of an unsatisfactory reference, as he contends is the situation in this case. He therefore says that the decision of the Employment Tribunal that it had no jurisdiction to entertain his claim is erroneous in law, even perverse, as he contends in his grounds of appeal.
35. In my view it is not possible to determine this matter without a full hearing of the appeal. On the basis of the arguments which I have summarised, I am satisfied that there is a substantial point raised by Mr Fadipe which requires this part of his case to go forward to a full hearing. So, the result of my judgment can be summarised in this way. First, I refuse permission in respect of the claim for unfair dismissal on 4th June, because the claim was out of time and the tribunal were entitled to refuse to extend time; and they were right in rejecting Mr Fadipe's argument of a continuing act. But, second, in respect of the claim of detriment suffered as a result of what is alleged to be an unsatisfactory reference, Mr Fadipe has a point on jurisdiction in the context of the health and safety provisions of the 1996 Act, section 44, and the Directive, which requires argument to be given to the court by both sides at the full hearing.
36. Accordingly, I grant permission for the appeal to proceed on that point.
Order: Application allowed in part. Copy of the judgment to be supplied to the applicant at public expense. (Order does not form part of approved Judgment)