United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Mrs Samantha Spillett and Mrs Dawn Cann	MR JAMES TAYLER (Of Counsel) As instructed by: Disability Rights Commission 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ
For Tesco Stores Ltd	MR RICHARD POWELL (Of Counsel) Instructed by: Messrs DLA Piper Rudnick Gray Cary UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL
For BUPA Care Homes (BNH) Ltd	MR MARTIN PALMER (Of Counsel) As instructed by: BUPA Care Homes(BNH) Ltd Legal Department BUPA House 15-19 Bloomsbury Way London WC1A 2BA

SUMMARY

Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment

Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, or whether the just and equitable discretion under DDA Schedule 3 Part 3 may be exercised. It is the latter.

Discretion to permit/refuse amendment.


 


HIS HONOUR JUDGE PETER CLARK

1. I have heard these appeals together. It is convenient to give a composite Judgment in both cases. They were said to raise an important issue relating to the grafting of the requirements to comply with the statutory grievance procedures to be found in section 32 Employment Act 2002 (EA) onto the pre-existing limitation provisions to be found, in these cases, in the Employment Rights Act 1996 (ERA) and Disability Discrimination Act 1995, as amended (DDA).
2. In BUPA v Cann (the Cann case) the Respondent before the London (South) Employment Tribunal, BUPA Care Homes (BNH) Ltd, appeals against the order of a Chairman, Mr D N Milton, sitting alone on 24 June 2005, ruling that the Tribunal has jurisdiction to entertain the Claimant, Mrs Cann's claim of disability discrimination and a cross-appeal by the Claimant against the Chairman's order that her claim of (constructive) Unfair Dismissal is dismissed by reason of section 32 EA and/or section 111(2) ERA. Those orders, with reasons, were promulgated on 9 August 2005.
3. In Spillett v Tesco (the Spillett case) the Claimant, Mrs Spillett appeals against the Judgment of a Chairman, Mrs F J Silverman, sitting alone at the Ashford Employment Tribunal on 27 April 2005, (a) ruling her claim under the DDA out to time and (b) refusing her permission to amend her claim to include claims of constructive Unfair Dismissal and Disability Discrimination by reason of her constructive dismissal. The Respondent, here and below is her former employer, Tesco Stores Ltd. That Judgment was promulgated with reasons on 23 May 2005.

Background

The Cann case

4. Mrs Cann commenced employment with BUPA on 24 May 2001 as a care worker at their South Lodge Nursing Home. It is common knowledge that such work frequently involves the manual handling of patients. At the relevant time (late 2004) she was 43 years old.
5. On 24 November 2004 she gave notice of resignation from the employment. That notice was accepted and took effect on 22 December. On 19 March 2005 she presented an ET1 claim form to the Employment Tribunal. On 22 March a Chairman ordered the return of the Claim form to the Claimant on the basis that it contained insufficient details. It was returned to her on 24 March and on 7 April she wrote a letter to the Tribunal, accompanying her original Claim form. On 11 April the Claim form was accepted by the Tribunal and served on BUPA. On 5 May BUPA presented their response. A Pre-Hearing Review (PHR) took place before Mr Milton on 24 June, leading to the orders under appeal.

The Spillett case

6. Mrs Spillett commenced her employment with Tesco in 1996. She worked as a general assistant in a petrol filling station. In May 2004 she applied internally for an advertised position as a wages clerk. On 15 May she was interviewed by Ms Kennell, a personnel manager for a wages clerk position in Tesco's Sheerness store. The Claimant has a stammer; it is her case, as set out in her ET1 claim form presented to the Tribunal on 5 January 2005, that a few days after interview Ms Kennell telephoned her at home to say that her job application was unsuccessful because of her stammer and because she had low confidence.
7. The Claimant made no complaint to Tesco about this outcome until an exit interview, following her resignation, on 8 October 2004. The Exit Interview Form, completed by her manager, Chris Chalkeley, records the following:

"Samantha (Claimant) has had no opportunity to discuss career options. She feels this is because of her stammer that management undervalue her"

And later:

"Sam previously was interviewed for a position before. She was thought capable and ideal for the job. She was refused the position due to her slight stammer as this was considered a 'weakness'. Samantha obviously became unsatisfied with the company after this."

On 20 November she wrote to Tesco complaining about her non-appointment in May 2004. Having presented her claim on 5 January 2005 that claim was accepted by the Tribunal and served on Tesco. By their response presented on 1 February 2005 the company denied that the Claimant was disabled with section 1 DDA or, if she was, that they had discriminated against her on grounds of disability.

8. The claim was listed for PHR and a Case Management Discussion (CMD) on 3 March 2005. That hearing was conducted by a Chairman, Ms C Hyde, sitting alone. The Claimant did not attend but submitted a written explanation for her non-appearance. It was caused by bad weather. The Respondent was represented by Counsel, Ms Stone. As appears from her Reasons promulgated on 10 March that Chairman, in adjourning the hearing, raised on her own initiative an issue which, it seems, had not been considered by the parties. It related to the question as to whether section 32(4) EA removed the power or discretion of a Tribunal to extend time in discrimination cases on the just and equitable ground and whether, in considering that question, Article 6 ECHR was engaged.
9. The resumed PHR took place before Mrs Silverman on 27 April 2005.

The Causes of action

10. It seems to me essential, in any case where issues arise as to limitation, what I shall call Dispute Resolution or amendment (those issues arising within these two cases) to identify as a starting point just what claims the Claimant wishes to bring before the Tribunal.
11. That is often easier said than done, particularly where, as in these cases, the Claimant has launched Tribunal proceedings in person. Although both Claimants before me now have the advantage of representation by the DRC, which has in turn instructed Mr James Tayler of Counsel to advance their cause, that was not the position when these claims commenced. Mr Tayler appeared for Mrs Spillet before Mrs Silverman; otherwise his part has been limited to the appeal process. Mrs Cann appeared in person before Mr Milton. Nevertheless it is a necessary exercise at the initial screening stage when the claim is presented, in determining whether or not it should be accepted and by the Chairman sitting on a PHR/CMD.

Mrs Cann's claim

12. Mr Milton, at paragraphs 13-14 of his reasons, identified the following claims in the Claim Form:

(1) (Constructive) Unfair Dismissal

(2) a claim for outstanding expenses

(3) "in a still very vaguely formulated fashion a claim of disability"

The Chairman did not go further to seek to ascertain whether the disability claim was one of direct discrimination under section 3A(5), read with section 4(2)(d) and 4(5)(b), that is relating to a Constructive Dismissal taking effect on 8 October 2004, after the amendments to the DDA by SI 2003/1673 took effect on 1 October 2004, or a complaint of failure to make reasonable adjustments which may or may not be affected by those amendments, or otherwise.

13. At this appeal hearing Mr Tayler identifies the following DDA claims:

(1) The Respondent's disbelief that the Claimant was genuinely unwell, coupled with their insistence on a full medical report, amounted to harassment, direct discrimination and disability related discrimination.

(2) The requirement that she should go absent from work by way of holiday leave amounted to disability related discrimination and failure to make reasonable adjustments. He also sought to add a claim of failure to make reasonable adjustments in not providing for the Claimant's use a hoist or other lifting equipment.

Mrs Spillett's claim

14. Her original Form ET1 ticks, in answer to Question 3.3: 'Is your claim, or part of it, about a dismissal by the Respondent', the 'No' box. At paragraph 6.1 she ticked the Disability Box. In describing the incidents alleged to amount to discrimination she referred to the interview with the Personnel manager (in May 2004) and the subsequent telephone conversation in which she was allegedly told that she was unsuccessful in her job application due, in part, to her stammer.
15. At paragraph 8.1 of the Form she ticked the 'other unpaid amounts' box, as money owed to her and added this (paragraph 8.3):

"I believe I am owed wages because had this not happened, I would still be working for Tesco's."

16. In her letter dated 20 November 2004, addressed to Mr Halloran at the Sheerness store, she complained about her treatment in May 2004 to which I have referred. She said this:

"I decided that a company who acted in this manner was not the company I would like to work for and after all my financial commitments were paid I resigned."

17. At the PHR before Mrs Silverman (and not before; Reasons paragraph 22) the Claimant, now advised by the DRC and Mr Tayler, applied to amend her Claim Form in this way:

"The Respondent's treatment of the Claimant in May 2005 (sic) in relation to the Claimant's application to become a wages clerk and the Respondent's refusal of that application constituted unlawful discrimination contrary to section 5(1) and/or 5(2) falling within section 4(2)(b) and/or (d) DDA.

Further, with effect from 8 October 2005 (sic), the Claimant resigned from her employment by reason of the Respondent's conduct. She was constructively dismissed. She claims that she was discriminated against contrary to section 3(A)(i) and/or 3(A)(ii) and/or section 3(A)(v) read with section 4(2)(d) and 4(5)(b).

The Claimant further alleges that she was unfairly dismissed contrary to section 94(1) Employment Rights Act 1996."

The first amendment related to the existing claim: the second and third raise new claims.

Limitation and Dispute Resolution

18. With some diffidence and my thanks to Counsel for their assistance I must now attempt to analyze the relevant statutory framework into which the pre 1 October 2004 limitation provisions and the Dispute Resolution provisions fit.

Pre-1 October 2004

ERA

19. A claim of constructive Unfair Dismissal (section 95(1)(c)) may be presented to an Employment Tribunal (section 111(1)). The primary time limit is 3 months from the effective date of termination (section 111(2)(a)); the Effective Date of Termination in a case of constructive dismissal is the date on which the contract is terminated, not when notice is given by the employee (section 97(1)(a)); time will be extended where the employee shows that it was not reasonably practicable to present it within time, provided that the ET1 is presented within such further period as the Tribunal considers reasonable (section 111(2)(b)).

DDA

20. Prior to amendment the DDA provided for (1) discrimination by way of less favourable treatment, as explained by the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951, subject to justification by the employer (section 5(1)) and (2) discrimination by way of failure to make reasonable adjustments (section 6), again subject to justification, (section 5(2)). The statutory tort was completed by an unlawful act under section 4(1) or (2). In particular, in relation to section 5(1) discrimination, by dismissing the employee (section 4(2)(d)).
21. There was controversy at EAT level as to whether 'dismissal' in section 4(2)(d) included constructive dismissal. That issue was resolved by the Court of Appeal in Meikle v Notts County Council [2005] ICR 1. It did.
22. Limitation is dealt with in Schedule 3, paragraph 3 to the Act. It follows the same formula as that in the Race Relations Act 1976 section 68 and the Sex Discrimination Act 1975 section 76. The primary limitation period is again 3 months, subject to extension where the Tribunal considers it just and equitable to do so in all the circumstances of the case.

Post–1 October 2004

23. No material alterations have been made to the ERA since 1 October 2004. As I have observed, the DDA was amended on that date so that now:

(1) Section 3A(5) now introduces a definition of direct discrimination, in addition to the former section 5(1) discrimination (now section 3A(1)) and section 5(2) failure to make reasonable adjustments (section 3A(2)). Section 4(1) and (2) unlawfulness remains as before, however section 4(5)(b) specifically provides that dismissal includes constructive dismissal. The definition in section 4(5)(b) is as follows:

"dismissal of a person includes a reference –

to the termination of that person's employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employee."

The amended DDA also adds, by section 3B, the tort of harassment.

24. Section 32 EA sets out certain gateways to presenting complaints to Tribunals under the jurisdictions listed in schedule 4 to the Act. They include, for present purposes, sections 17A DDA (discrimination in the employment field) and section 111 ERA (unfair dismissal).
25. By section 32(2) an employee shall not present a complaint concerning a matter where the requirement in paragraph 6 or 9 of Schedule 2 (setting out a grievance in writing and sending a copy to the employer, i.e. step 1 of the standard procedure (paragraph 6) or step 1 of the modified procedure under paragraph 9)) has not been complied with. Section 32(3) prevents such a complaint being presented where step 1 has been taken but less than 28 days have elapsed between step 1 compliance and presentation of the complaint. Further, section 32(4) imposes a similar prohibition where step 1 compliance takes place more than one month after the end of the original time limit for making the complaints.
26. Section 33 provides that regulations may be made to adjust existing time limits in respect of a matter to which a statutory procedure applies. Each of the provisions there mentioned are for extending, not abridging time. The relevant Regulations are the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the Regulations). The following points require attention.

(1) Dismissal

27. Dismissal has the meaning given to it in section 95(1)(a) and (b) ERA (Regulation 2(1)). Thus constructive dismissal is not included in the definition of dismissal for the purposes of these Regulations. Although silent on the point it seems to me that the exclusion of section 95(1)(c) ERA constructive dismissal from the definition of dismissal must also encompass the definition now in section 4(5)(b) DDA.
28. The limited definition of dismissal is important because the Regulations provide for statutory dismissal and disciplinary procedures to apply to dismissals, as defined, whereas Statutory Grievance Procedures (SGP) apply, among others, to cases of constructive dismissal (Regulation 6(5)).

(2) The point of general importance

29. The question raised directly in the Cann case is whether the expression 'original time limit' contained in section 32(4) EA, itself not defined in the Act, refers to the primary 3 month limitation period or to the primary period as extended by the Tribunal where either it was not reasonably practicable to present a complaint of Unfair Dismissal in time (ERA section 111(2)(b)) or it is just and equitable to extend time in a DDA claim, applying Schedule 3 paragraph 3 to the Act.
30. The provision in the Regulations, following section 33 EA, dealing with extension of time limits, is Regulation 15. The starting point is the 'normal time limit', defined in regulation 15(5) as the primary 3 month period without extension under the reasonable practicability or just and equitable escape clauses. In certain circumstances the normal time limit is extended for a period of 3 months (regulation 15(1)).
31. The issue between Counsel in the Cann case can be posed by this question; does the expression 'original time limit' in section 32(4) EA mean the same as 'normal time limit' in Regulation 15 of the Regulations?
32. Mr Palmer, appearing for BUPA, submits that the two expressions are synonymous and that the Tribunal's discretion to extend time under Schedule 3 paragraph 3 DDA is displaced by section 32(4) EA. Consequently the requirement to comply with the SGP, step1, expires 4 months (3 months plus 1 month) after the act of discrimination complained of. Once that period has expired there is no scope to extend time; nor can the requirement of section 32(4) be disapplied, since no Regulations, envisaged by section 32(5), have yet been passed.
33. In support of that submission he has referred me to Hansard and the debate in the House of Lords on what was then Clause 32(4) of the Employment Bill before Parliament. In particular the Lord Chancellor, the relevant minister, said:

"We therefore specify at sub-section (4) that the employee shall have taken the step 1 action no later than one month following the normal period for making applications to tribunals. In most cases that will mean four months."

Mr Palmer submits that that statement made on behalf of the government by the Lord Chancellor is entirely consistent with the construction which he advances and provides an insight into the intention of Parliament.

34. Mr Tayler puts forward a different construction. Dealing first with the Parliamentary debate he reminds me of the principles laid down by the House of Lords in Pepper v Hart [1993] AC 593. Recourse may only be had to Parliamentary materials as an aid to statutory construction where (a) the legislation is ambiguous, obscure or may lead to absurdity; (b) the material consists of one or more statements by the Minister; and (c) the statements relied upon were clear. He submits that the passage relied on by Mr Palmer is far from clear. The observation 'In most cases that will mean four months' is equally capable of referring to cases where an extension of time is granted under the ordinary limitation provisions as, in Mr Palmer's submission, cases where the primary limitation period is three months, as opposed to, for example, the six month primary limitation period in relation to claims for a redundancy payment (ERA section 164). I accept that submission. In my judgment the statement by the Minister is not so clear as to put the matter beyond doubt.
35. Thus, concentrating on the statutory wording, Mr Tayler submits that Parliament ought not to be taken to have implicitly repealed the just and equitable extension of time provisions in Schedule 3 paragraph 3 DDA by section 32(4) EA. The use of the expression 'original time limit' means something different from 'normal time limit', as defined in regulation 15(5), otherwise the expression 'original time limit' would be repeated in regulation 15 and given the meaning there ascribed to normal time limit. Further, it is significant that section 33 EA and regulation 15 are concerned with extending, not abridging time limits. The provision for further Regulations disapplying section 32(4), envisaged by section 32(5) is not concerned with extending time, but disapplying the provisions of section 32(4) altogether.
36. Further, he relies upon paragraph 125 of the Guidance issued by the Department of Trade & Industry which states:

"It should be noted that the existing discretion of the Tribunal to extend a time limit where it was not reasonably practicable for it to be met (or, under some jurisdictions, where it is just and equitable to extend it) is unaffected by these changes."

Finally, he invokes the European jurisprudence to argue that the construction advanced by Mr Palmer would have the effect of impairing the essence of the right of disabled persons to seek redress through the tribunal.

37. Having carefully considered the rival contentions I prefer the construction advanced by Mr Tayler. In my judgment the 'original time limit for making the complaint' is the time limit provided for in the relevant legislation, here the DDA. That includes giving a tribunal the power to consider a complaint made outside the primary limitation period where it is just and equitable to do so. In those circumstances the claim is not time-barred. If Parliament wished to restrict that discretion to extend time it would have said so in the principal Act (EA). Instead, by the Regulations made under that Act, it has provided for time to be extended in certain circumstances. That extension of time is expressed to run, by regulation 15, from the end of the primary limitation period only. No such restriction is expressed in the Act.
38. In my view this construction is entirely consistent with the European jurisprudence relied upon by Mr Tayler. It is also consistent with the Guidance issued by the DTI. It also reflects the different wording in section 32(4) (original time limit) and the defined normal time limit in Regulation 15(5).

(3) Grievance

39. Schedule 2, paragraph 6 to EA provides:

"Step 1: statement of grievance

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer."

As to what constitutes a Step 1 grievance a degree of controversy arose at Employment Tribunal level. That controversy has, it seems to me, now been largely resolved at EAT level by a series of decisions which post-date that of Mr Milton in the Cann case. I refer particularly to three cases now reported in the February 2006 IRLR; Galaxy Showers Ltd v Wilson (P.83); Shergold v Fieldway Medical Centre (P.76) and Mark Warner Ltd v Aspland (P.87). I shall return to the principles emerging from those cases when considering Mrs Cann's cross appeal.

The Appeals

The Cann case

40. It is convenient first to consider the Claimant's cross appeal against Mr Milton's finding (Reasons paragraphs 8-9) that her letter of resignation dated 24 November 2004 did not constitute a step 1 grievance for the purpose of section 32 and Schedule 2, Part 2, Chapter 1, paragraph 6 EA.
41. Applying the reasoning in the three cases mentioned above I am satisfied that it did. It matters not that it was contained in a letter of resignation (Shergold, paragraph 31); it plainly raised her complaints which form the basis of her subsequent claim to the Employment Tribunal; it was not necessary for her to expressly invoke a grievance procedure (Shergold, paragraph 33); it was in writing and sent to her employers. The requirements of paragraph 6 were met.
42. Mr Palmer accepted that if I upheld the Claimant's cross-appeal then no further impediment stood between the Claimant and having her claim accepted. That is the end of the matter. The cross-appeal is allowed and the case will be remitted to the Employment Tribunal for a merits hearing, subject to a CMD before a different Chairman to provide for the future conduct of the case.
43. In these circumstances it is unnecessary for me to consider the Chairman's imaginative route leading him to conclude that the Claimant raised a grievance, for the first time, at the PHR. Similarly it is not strictly necessary for me to consider the Claimant's appeal, however, were it necessary to do so, I should have upheld the Chairman's ruling, extending time for bringing her complaint of disability discrimination and dismissed that appeal.

The Spillett case

44. This case does not, in fact, raise the point of general importance relating to section 32(4) EA. Instead, the real issue, raised by the Claimant's appeal, is whether the Chairman's refusal to permit the proposed amendment to the original claim form reveals any error of law.
45. Mr Tayler points out that the proposed amendment related both to constructive unfair dismissal and a claim under the DDA based on her alleged constructed dismissal. He submits that the Chairman failed to appreciate that the latter claim was sought to be added. I disagree; paragraph 23 of the Chairman's reasons suggests otherwise. In any event, precisely the same considerations applied to both new claims.
46. In my judgment the Chairman, exercising her discretion in accordance with the guidance in Selkent v Moore [1996] IRLR 661, approved by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201, was entitled to conclude that these substantial amendments, made late in the day were not foreshadowed in the original Form ET1, which expressly stated that the claim was not about dismissal. There are no grounds in law for interfering with that exercise of discretion.
47. Finally, I am not persuaded that any error of law is made out in the Chairman's refusal to extend time for pursuing a claim arising from the original act of disability discrimination said to have occurred in May 2004.
48. In these circumstances I shall dismiss this appeal.