United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Dijen Basu (of Counsel) Instructed by: London Borough of Lambeth Legal Services Room 205 Lambeth Town Hall London SW2 1RW
For the Respondent	Mr Robert Wilfred Corlett (the Respondent in Person)


 


SUMMARY

Race and sexual orientation discrimination claims – whether Dispute Resolution requirements complied with – whether time-barred. Obiter. Whether SGP applies as between Claimant and Respondents other than employer.


 


HIS HONOUR JUDGE PETER CLARK

Judgment

1. This case is presently proceeding in the London (South) Employment Tribunal (ET). The parties are Mr Corlett, Claimant, and London Borough of Lambeth (the Council) first Respondent, and seven named officers employed by the Council (the 2^nd – 8^th Respondents).
2. This appeal is brought by the Respondents against certain orders made by a Chairman, Mrs F Spencer, sitting alone at a Pre-hearing Review (PHR) and Case Management Discussion (CMD) held on 14 June 2006. Those orders are contained in the Chairman's order, with reasons, promulgated on 15 June. They concern the ET's jurisdiction to entertain certain of the Claimant's complaints in the light of the provisions of s32 of the Employment Act 2002 (EA) and Regulations made thereunder, namely the EA 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations).

The Claim

3. By a claim form presented to the ET on 8 April 2006, the Claimant alleged that he was continuously employed by the Council as Estate Director from 1 June 1997 until his summary dismissal by the Council on 14 October 2005. Initially he was employed by the Penwith Manor Estate Management Board (the EMB) which managed that housing estate on behalf of the Council under a management agreement which was terminated by the Council on 30 September 2004. It is common ground that the Claimant's employment was transferred under the TUPE provisions to the Council on 1 November 2004.
4. It is the Respondents' case that the Claimant was dismissed on grounds of gross misconduct on 14 October 2005.
5. By his claim form, the Claimant raises the following claims:

(1) Unfair dismissal;

(2) Wrongful dismissal, i.e. damaged for breach of contract arising from his summary dismissal;

(3) Unlawful discrimination on grounds of his race and/or sexual orientation.

Jurisdiction

6. (1) It is accepted by the Council that the ET has jurisdiction to entertain his complaint of unfair dismissal;

(2) Breach of contract:

The Chairman identified this claim at paragraph 1 of her reasons, but records no express ruling as to whether the ET has jurisdiction to entertain this claim. In this appeal Mr Basu challenges the implicit finding that the ET has jurisdiction. I shall deal with that challenge separately;

(3) Discrimination:

The Chairman ruled that the complaint of discrimination on the grounds of sexual orientation was insufficiently particularised. In the absence of the Claimant at the hearing she directed that further particulars of this (and the race discrimination) claim be provided before ruling on the jurisdictional issue. She rejected the Respondents' contention that the ET had no jurisdiction to consider the claims of race discrimination. In the appeal, Mr Basu contends that both discrimination claims fail on jurisdictional grounds. Again, I shall consider that submission separately.

Breach of contract

7. Mr Basu accepts, for the purposes of the statutory unfair dismissal claim, that since, at the time when the normal three months time limit for bringing that claim - that is, 13 January 2006 (Employment Rights Act 1996, s111(2)(a)) - a dismissal or disciplinary procedure, namely an internal appeal, was being followed in respect of matters consisting of the substance of this complaint, so that by virtue of regulation 15(2) of the 2004 Regulations, time for presenting the complaint was extended for a period of three months until 13 April 2006 (regulation 15(1)(a)). Accordingly, this claim, presented on 8 April, was in time and valid.
8. However, he contends that the claim for breach of contract, brought under the ET's Extension of Jurisdiction (England and Wales) Order 1994 (the 1994 Order) must be viewed differently. Under paragraph 7(a) of the 1994 Order, the primary limitation period is three months beginning with the effective date of termination of the contract giving rise to the claim. That mirrors the primary time limit for a claim of unfair dismissal provided for in s111(2)(a) of the Employment Rights Act.
9. As to regulation 15(2) of the 2004 Regulations, he draws attention to the words:

"the employee… had reasonable grounds for believing, when that [primary] time limit expired, that a dismissal or disciplinary procedure… was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."

10. Put shortly, whereas Mr Basu accepts that the Claimant's internal appeal "covered" the subsequent complaint of unfair dismissal, it did not cover the breach of contract claim under the 1994 Order, since that complaint related to the Council's failure, on dismissal, to give contractual notice or pay in lieu, not to the dismissal itself.
11. First, he submits, since the breach of contract claim related to the failure to give notice or pay in lieu and not to the dismissal itself, the statutory grievance procedure (SGP) applied and not the statutory disciplinary procedure (SDP). I disagree. Regulation 6(5) provides in terms:

"Neither of the grievance procedures applies where the grievance is that the employer has dismissed… the employee."

That was the Claimant's grievance, pursued through the internal disciplinary procedure by way of appeal; that he had been dismissed.

12. Secondly, I cannot accept that the claim for wrongful dismissal falls outside the scope of regulation 15(2). It seems to me clear that the internal appeal by the Claimant against his dismissal included the substance of his wrongful dismissal complaint to the ET, namely that his dismissal was in breach of contract at common law.
13. Accordingly, I reject this part of the appeal and affirm that the ET has jurisdiction to entertain the complaint of wrongful dismissal as well as that of unfair dismissal.

Discrimination – Detriment

14. It seems to me essential that when considering a submission at a PHR going to the ET's jurisdiction under the Dispute Resolution provisions it is first necessary to identify precisely the acts of alleged discrimination complained of as amounting to a detriment. In the present case I accept Mr Basu's analysis of the Claimant's claims contained in his form ET1, said to amount to unlawful discrimination (whether on grounds of race or sexual orientation is immaterial for present purposes) as follows:

(1) Causing the service of a s151 Local Government Act 1972 exclusion notice on him in late August/early September 2004;

(2) Suspending him on full pay from 12 November 2004;

(3) A negative attitude on the part of Stanley Allotey (2^nd Respondent) and others towards gay employees (the Claimant describes himself as bi-sexual);

(4) That other EMBs which had a majority of black members of staff and on their Boards and which experienced comparable difficulties to those of the EMB by which the Claimant was employed prior to the relevant transfer were offered support, development and assistance, which the EMB and the Claimant (who is white) were not.

15. As to these alleged acts of discrimination not involving dismissal, the Chairman does not appear to have given her reasons as to why the ET had jurisdiction to entertain them. At paragraph 9 of her reasons, under the heading 'Race Discrimination', the Respondent's submission is recorded but not ruled upon; and at paragraph 10 it is recorded that further details were required on the sexual orientation complaint.
16. Having considered the rival submissions before me, I accept Mr Basu's analysis as follows:

(1) Insofar as the Claimant complains of alleged acts of discrimination (not including dismissal) taking place before 1 October 2004 (when the 2004 Regulations came into force), for example, service of the s151 notice, the Claimant is unable in any event to rely on the provisions of regulation 15(2) to extend time, I would add subject to the effect of the transitional provisions contained in regulation 18, however

(2) Even if the transitional provisions apply, or the act complained of post-dated 1 October 2004, the Claimant did not raise a grievance in relation to race or sexual orientation discrimination at any stage prior to termination of the internal appeal procedure by letter dated 18 January 2006, and the ET had no jurisdiction to consider these claims by virtue of s32(2) EA;

(3) No extension of time arises under regulation 15(1)(b) and (3). No basis for an extension of time under the just and equitable principle (Race Relations Act 1976 s68(8); Employment Equality (Sexual Orientation) Regulations 2003, regulation 34(3)) was advanced by the Claimant. In these circumstances, the claims are time-barred;

(4) The Chairman was wrong to hold (reasons, paragraph 3) that suspension with full pay amounted to the taking of disciplinary action for the purposes of regulation 6(6) (excluding SGPs). Regulation 2(1) provides that "relevant disciplinary action" does not include suspension on full pay.

Discrimination – Dismissal

17. The question here for the Chairman was whether, applying regulation 15(2), the disciplinary procedure, particularly the internal appeal, gave the Claimant reasonable grounds for believing that it was being followed in respect of matters that consisted of or included the substance of his complaints of unlawful discrimination to the ET.
18. Looking at the available material it is clear to me that he could not have entertained such a belief. No complaint of discrimination on the grounds of race or sexual orientation was raised by him in his grounds of internal appeal prepared by his Trade Union Branch Secretary nor at the appeal hearing held on 9 January 2006, as Mr Corlett fairly conceded in argument before me.
19. In these circumstances I accept Mr Basu's submission that the Chairman was wrong to conclude (reasons, paragraph 3) that the Claimant was entitled to rely on regulation 15(2) to extend the time limit for presenting his complaints of unlawful discrimination, on grounds of race or sexual orientation, by way of dismissal. As indicated earlier, no basis for extending time under the just and equitable principle was advanced in respect of this part of the claim.

Individual Respondents

20. It necessarily follows from my earlier conclusions that whilst the ET has jurisdication to consider the Claimant's claims of both unfair dismissal and wrongful dismissal against the first Respondent (the Council), it has no jurisdiction to hear his claim of race and sexual orientation discrimination brought against the Council.
21. As to the individual named Respondents, the claims against them are limited to acts of unlawful discrimination (other than dismissal).
22. At the hearing before me Mr Basu drew attention to the judgment of Lady Smith, sitting alone in Bisset v Martins and Castlehill Housing Association Ltd (UKEAT 0022/6 and 0023/06. 18 August 2006. Unreported.). One of the issues arising for determination in that case was whether the Claimant could benefit from the extension of time provision contained in regulation 15 of the 2004 Regulations against a fellow employee named as Respondent together with her employer, where her complaint was one of disability discrimination (other than dismissal). Lady Smith held that she could not, on the ground that neither of the SGPs (standard or modified) applied as between fellow employees.
23. As this point had not been previously advanced, neither in the notice of appeal nor in Mr Basu's skeleton argument, I directed that the parties lodge further written argument limited to the question, raised by Mr Basu, as to whether Bisset was correctly decided and its effect on the individual Respondents in the present case.
24. In short - given my finding that even if the provisions of regulation 15 were capable of applying to the individual Respondents, the Claimant had not fulfilled the requirements of regulation 15(3) so that he could not rely on the extension of time granted by regulation 15(1)(b) - the correctness of Bisset does not strictly arise for decision in the present case. Further, I have not had the advantage of full legal argument on the points. While the criticisms of the reasoning in Bisset are clearly stated in Mr Basu's further submissions, I have not found the short submission by Mr Corlett to engage fully with the difficult legal question raised; that is no criticism of him; he is not a lawyer.
25. I would simply observe that looking at Lady Smith's reasoning in reaching the conclusion that the requirement to follow the SGP does not apply as between fellow employee Claimant and Respondent, to be found principally in paragraph 47 of the judgment, it relies first on the proposition that the requirement to follow such procedures only arises because it is made a condition of every contract of employment (section 30 of the Employment Act). That is a reference to section 30(1) of the Act, which has not yet been brought into force. Secondly, it was held that it is inconceivable that the grievance procedures were intended to operate as between employees. That is plainly correct. However, Mr Basu argues strongly that since under the scheme of the discrimination legislation the acts of an employee are deemed to be the acts of his employer (subject to the statutory defence) and the employee is treated as aiding and abetting the employer so as to be personally liable for his unlawful act of discrimination, the unlawful act remains "action by the employer" for the purposes of regulation 6(1) of the 2004 Regulations.
26. In short, there is no policy reason, it may be said, to exclude the obligation on an employee to raise with his employer a grievance about the discriminatory acts of a fellow employee joined as Respondent (that, after all, is the almost inevitable subject matter of any grievance to an employer about discrimination) under s32 of the Employment Act. With that obligation comes the benefit of the extension of time granted by regulation 15 in an appropriate case.
27. I express no concluded view on the correctness of the decision in Bisset for the reasons mentioned earlier. However, the point is plainly arguable and of some importance. It must wait to be decided in a case in which it necessarily arises for determination.

Conclusion

28. It follows that I shall allow this appeal in part and direct that

(1) the case proceed to a full hearing on the Claimant's claims of both unfair dismissal and wrongful dismissal against the Council only;

(2) the claims of unlawful discrimination on grounds of race and sexual orientation are dismissed as against all Respondents. Accordingly the 2^nd - 8^th Respondents are dismissed from the action.