England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE LANGSTAFF (PRESIDENT)
UKEAT/0386/11/SM

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/12/2012

Lord Justice Mummery:

The appeal

1. This appeal is about the application of the provisions in the Race Relations Act 1976 (the 1976 Act), which laid down a 3 months time limit for presenting a complaint of race discrimination to an employment tribunal (ET). The period of 3 months began to run from when the act complained of was done, or, in the case of any act extending over a period, the act was treated as done at the end of that period: see s. 68. The relevant provisions are now to be found in the Equality Act 2010.
2. Mr Gregory Charles, who appears in person, was employed by Tesco Stores Limited (Tesco) as a fork lift truck driver. He is black. On 16 June 2009 he lodged a grievance with Tesco in the form of a Dignity-at-Work complaint against a fellow worker, Mr Andrews. After a delay of about a year, which he believes was the result of race discrimination, he was orally informed at a feedback meeting on 4 June 2010 that Tesco had completed stage 1 of the grievance process and that none of the witnesses interviewed supported his grievance. He appealed on 5 June 2010. There was a stage 2 grievance outcome meeting on 17 August 2010 with a Mr Neil Harvey. He investigated the grievance and upheld it. There were inconclusive discussions at the meeting about compensation offered by Mr Harvey, but these were then "taken off the table" after consultation with Tesco managers.
3. The ET held that 4 June 2010 was the last act relied on by Mr Charles as an act of race discrimination and that time for the presentation of his complaint to the ET started running from that date. He did not present his ET1 complaint form until 29 October 2010 alleging delay and disparate treatment in the handling of the grievance process, in particular the length of time it had taken to respond to his grievance.
4. In its decision of 29 October 2010, following a Pre-Hearing Review (PHR), the ET ruled that it lacked jurisdiction, as the complaint was out of time and that it was not just and equitable to extend time.
5. Mr Charles unsuccessfully sought a review from the ET on the ground that one of the matters complained of by him was the making and retraction of an offer of compensation made by Mr Harvey on 17 August.
6. On 19 January 2012 the Employment Appeal Tribunal (EAT) dismissed his appeal. It said that he could only appeal on a point of law. His appeal was against a finding of fact. The EAT held that the ET was entitled to find that Mr Charles was not claiming that the offer and withdrawal of compensation on 17 August was an act of race discrimination.
7. On 2 May 2012 I expressed agreement with the judgment of the EAT and refused the paper application for permission to appeal. On 20 July 2012 Rimer LJ heard a renewed application by Mr Charles. He granted permission to appeal, as he was left in some uncertainty about the nature of the case that Mr Charles had advanced in the ET and whether it included a complaint that the withdrawal of an offer of compensation was discriminatory.

Tesco's submissions

8. Mr Brian Napier QC, who appears for Tesco and submits that we should dismiss the appeal, made concise submissions as to why no point of law arises on this appeal. Mr Charles, he says, is seeking to argue against the finding of the ET as to the date on which time started to run. That was a factual finding by the ET on the basis of the evidential materials before it. In those circumstances this is a "perversity appeal" on which Mr Charles can only succeed if he demonstrates an overwhelming case that no reasonable ET could have made that finding. The ET was entitled to find that the complaint by Mr Charles was about the delay and failure to interview witnesses at stage 1 of the grievance process and that in the evidence and documents at the PHR Mr Charles made no complaint about an offer of settlement or its withdrawal at the meeting on 17 August 2010. He accepts that the ET1 refers to that meeting, but contends that Mr Charles did not rely on it as a separate complaint in and of itself. The meeting was brought up in the context of his complaint about the delays in the process and Tesco's failure to deal with his grievance against the alleged perpetrator. He complained about the events "leading up to" the 17 August meeting rather than about what happened at the meeting.

Submissions of Mr Charles

9. Mr Charles submits that time did not start to run against him until 17 August 2010 and that his complaint is in time, as it was presented within 3 months of that date. He says that on 17 August Mr Harvey made an offer of settlement, which was then withdrawn and that the circumstances of the withdrawal were discriminatory.
10. The error of law in the ET and the EAT was in ignoring, or failing to take into account without explanation, the fact that his ET1 included a complaint that at the 17 August meeting he was offered compensation by Mr Harvey only for it then to be taken away by Tesco. That was the last act of discrimination and it occurred within the period of three months prior to the presentation of the complaint to the ET.

Discussion and conclusions

11. At the hearing of the appeal the court took Mr Charles carefully through the contents of the ET1, in particular sections 5.2, 6.1 and 7.1 in which he had set out in his own handwriting his account of events. As Langstaff J commented in the EAT, it was "not the easiest to read." We have been supplied with an agreed typescript version, which is easier to read.
12. The printed ET1 form provides for the complainant to identify his claim by ticking the relevant head of claim. The form then requests a description of the event or series of events, which have caused the complainant to make the claim, with the background and details of the claim, including the date when the event(s) happened, such as the dates of all incidents of discrimination complained about "or at least the date of the last incident." Later Sections of the form request information about the compensation or remedy sought and any extra information.
13. As a result of the useful dialogue with Mr Charles and of the helpful submissions made by Mr Napier I have reached the following conclusions.
14. First, in the ET1 Mr Charles ticked "Race" as the ground of discrimination. That could also include a claim for discrimination by way of victimisation contrary to s. 2 of the 1976 Act, which is not in the list of printed headings as a separate item.
15. Secondly, although the account of events written by Mr Charles refers to the stage 2 meeting with Mr Harvey on 17 August 2010, the meeting is not mentioned at all in the reserved judgment of the ET following the PHR. The focus of the judgment was on 4 June 2010 as the date when Mr Charles was orally informed of the outcome of the grievance. It is noted that he appealed against the outcome on 5 June. The 4 June was stated to be the date on which time began to run for the presentation of that claim. The judgment mentions a letter of 19 August informing Mr Charles that his grievance had been partially upheld, but only in the context of whether it was just and equitable to extend time having regard to his state of knowledge and not as another act or extended act of discrimination later than 4 June.
16. Thirdly, as pointed out by Langstaff J in the EAT, the account by Mr Charles in Section 5.2 relating to 17 August was "of the events leading up to this specifically the 17-08-2010 meeting" rather than of a separate complaint of discrimination arising from what happened at that meeting.
17. Fourthly, in Sections 6.1 and 7.1 of the ET1, Mr Charles made allegations about what happened at the 17 August meeting that identify the complaint made by him. He alleges that Mr Harvey upheld his grievance complaint against Mr Andrews. That in itself would not be a detrimental act of discrimination, nor would the offer of compensation. However, the narrative of events did not stop there, as Mr Charles went on to allege that Mr Harvey rescinded the offer "and took it off the table due to my involvement in employment Tribunals previously against Tesco so therefore nothing has been done about the D.A.W grievance." He then referred to "this continued victimisation and harassment abuse, intimidation and discrimination in racism… " He later referred to "...the employment claim is the 17.08.2010 meeting and outcome" and to the fact that 16 months after his dignity at work grievance it was still not completed -"it is still at stage 2 out of 3 stages…"
18. Fifthly, it is reasonably clear, from a fair reading of the completed ET1 as a whole, that the complaint made by Mr Charles did not stop at events of 4 June when he was notified of the rejection of his grievance. His complaint about "continued" victimisation and discrimination arising from the events of 17 August was not that his grievance was upheld by Mr Harvey, but that compensation offered for his grievance was not awarded because of his previous involvement in ET proceedings against Tesco. That smacks of a complaint of continuing discrimination, even of victimisation as an aspect of discrimination i.e. detrimental treatment because he has asserted his employment rights in ET proceedings against Tesco.
19. Sixthly, neither the ET nor the EAT fully appreciated the significance, for time limit purposes, of the nature or full extent of the complaints made by Mr Charles in the ET1. The view taken in the EAT was that the ET was entitled to hold as it did, because Mr Charles had not, at the ET hearing, identified the withdrawal of an offer/agreement regarding compensation as the subject of his complaint. The ET had found as a fact that the complaint was only about the delay in dealing with the grievance which was rejected on 4 June, so that that was the latest date on which discrimination was alleged. At the beginning of his judgment Langstaff J stated that "The sole issue in this appeal is one of fact. It is whether the Tribunal was entitled to come to the conclusion that a claim brought by the Claimant was out of time. " He concluded that there was no identifiable error of law in the reasoning of the employment judge:-

"27. In all those circumstances, I have come to the conclusion that, on the material that was before the Judge, the Judge was entitled to think that the complaint being advanced to her was a complaint that had two aspects to it: one was delay, and the other was disparate treatment as between him and Mr Andrews. There was insufficient to indicate that the Claimant was making a case that the withdrawal of the compensation offer, if that is what it was, or the failure to honour the compensation agreement, if that was what it was, was an act of discrimination against him that was the central complaint in his claim"

20. Seventhly, I think that the ET and the EAT erred in law in treating the identification of the complaint by Mr Charles as involving a finding of primary fact by the ET at the PHR on the basis of evidence given by Mr Charles. In truth, the identification of the complaint involved the construction of the ET1 as a document. As Lewison LJ pointed out in the course of argument, the time limit question involved determining what complaints were made by Mr Charles in the form ET1 presented by him on 29 October 2010. That is a matter of what the ET1 meant to the reasonable reader as at that date, rather than of a primary finding of fact based on evidence.
21. I can well understand how the ET gained the impression at the PHR that the main complaint was the delay and the disappointing (for Mr Charles) outcome of the grievance at stage 1 on 4 June. That was the impression conveyed by various documents (including a chronology which did not mention the withdrawal of an offer of compensation on 17 August 2010) prepared by the union representative then acting for Mr Charles and by a draft undated and unsigned witness statement prepared for Mr Charles. I was under the same impression when I considered the paper application for permission to appeal. However, with the benefit of the closer scrutiny, at an oral hearing, I have reached a different conclusion. This case is instructive about what we all know from experience: that the rigour of an oral hearing often adds value to the understanding of the case. Reading the ET1 in a fair and reasonable way in its surrounding circumstances I am satisfied that Mr Charles made a complaint of continued detrimental treatment at the meeting of 17 August. The outcome was the denial of a remedy for a grievance that was upheld and it is alleged that the reason for the denial was his involvement in ET proceedings against Tesco.
22. Finally, I should make it clear that whether Mr Charles can establish his allegations by evidence at the hearing of his complaint by the ET is a another matter. I do not know what the outcome will be. All that has to be decided at this stage is whether Mr Charles made his complaint in time. I think that he has, that the ET erred in law in ruling that he had not and that the EAT should have allowed his appeal.

Result

23. I would allow the appeal.
24. In brief, on a fair and reasonable reading, the ET1 did include a complaint of discrimination on 17 August 2010. The ET and the EAT erred in concluding that in the ET1 the last act complained of occurred on 4 June 2010. That was not a finding a primary fact, which is unappealable unless perverse: it was an erroneous construction of the ET1 and that raised a question of law.

Lord Justice Jackson:

25. I agree.

Lord Justice Lewison:

26. I also agree.