United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J FALKENSTEIN (of Counsel) Instructed by: Messrs Askews Solicitors 4-6 West Terrace Redcar Cleveland TS10 3BX
For the Respondent	MR R LEIPER (of Counsel) Instructed by: Sharon Langridge Employment Lawyer Milburn House Dean Street Newcastle upon Tyne NE1 1LE


 


SUMMARY

Jurisdictional Points - Claim in time and effective date of termination

The Appellant employee brought a claim (inter alia) that he had been subjected to a disciplinary suspension because he was a "whistleblower". The Tribunal decided that the claim was out-of-time. Decision upheld on the basis that, although the suspension was "an act extending over a period" within the meaning of sec 48 (3) (a) of the Employment Rights Act1996, it had come to an end more than six months before the institution of proceedings.


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against the decision of an Employment Tribunal holding that a claim by the Appellant to have been subjected to a detriment contrary to the so-called whistleblower provisions was out of time. The appeal turns on a narrow point of law as to whether the act or acts of which the Appellant complains were "one-off" or constituted an act or acts continuing over a period. The Appellant is represented by Mr. John Falkenstein of counsel and the Respondent (to which I will refer to as "the Council") by Mr. Richard Leiper of counsel: both of them also appeared in the Employment Tribunal, though in the case in Mr. Falkenstein he only did so for part of the hearing.
2. In view of the limited nature of the issue arising on the appeal, we can state the facts quite briefly, as follows:

(1) The Appellant commenced employment with the Council as a parking attendant in February 2000. In October 2002 he was appointed Parking Enforcement Manager. His immediate line manager was Mr. David Winstanley, who in turn reported to Mr. Derek Gittens. Mr. Gittens reported to Dr. Joan Rees, the Director of Sustainable Development.

(2) In mid-November 2004 the Appellant raised with Mr. Winstanley a complaint which he said that he had received from an anonymous member of the public alleging that Mr. Gittens had been involved in corruptly cancelling penalty notices. The Appellant's evidence about this to the Tribunal was contested by the Council, but no evidence was called from either Mr. Winstanley or Mr. Gittens, or indeed Dr. Rees, none of whom was any longer employed by it; and the Appellant's account was accepted by the Tribunal. It is unnecessary that we go into any detail about the complaint or the response: the gist was that Mr. Winstanley said that he would handle the matter.

(3) About a month later, on 16 December 2004, the Appellant was suspended by Mr. Gittens following receipt of a complaint by one of the parking attendants whom he managed. A disciplinary process ensued, and it apparently emerged that there was widespread dissatisfaction with the Appellant on the part of the attendants. On 21 March 2005 the Appellant was told that he would remain under suspension while a further investigation took place. On 22 April 2005, Mr. Gittens informed him that the suspension would continue further and that the ongoing investigation would cover:

" … bullying and intimidating staff, using staff and Council vehicles for non-Council activities during work time, giving preferential parking to certain vehicles and businesses, buying and selling cars on Council car parks, targeting enforcement at minority groups, fabrication of annual appraisals, misuse of ordering from supplies and delivery of a gun at your work address."

(4) The disciplinary process continued over the following months. It was planned that a disciplinary hearing should take place at the end of September. On 16 September, Mr. Alan Marshall, the "personnel team leader" responsible for the case, spoke to the Appellant informally and suggested that he should consider resigning and signing a compromise agreement: he referred to an earlier draft compromise agreement which had been put to him in May 2005 under which he would resign in return for a payment of £7,525 in full and final settlement.

(5) On 20 September 2004 the Appellant wrote to Dr. Rees complaining (as he already had to other Council staff) that the proceedings against him were being brought because of his reporting to Mr. Winstanley of the complaint against Mr. Gittens. That letter came to the attention of the Chief Executive of the Council, Mr. Colin Moore. Mr. Moore decided to set up his own investigation. In a letter to the Appellant dated 29 September 2005 he told him that pending the outcome of that investigation no further disciplinary action should be taken against him, although he would remain suspended. The investigation, which was carried out by Mr. Ian Hope from the Council's Internal Audit Department, did not fully endorse the Appellant's complaint, but it did nevertheless raise a number of serious points of concern about the way in which the disciplinary procedure had been handled. Mr. Moore decided to bring the disciplinary proceedings to a halt and to transfer the responsibility for car parking enforcement to the Area Management Department, the Director of which was Mr. Simon Dale. On 29 September he wrote to the Appellant as follows:

" … I have not yet received the final audit report but already from what audit have told me, it is clear that I have to take executive action.

I have instructed that the disciplinary investigation into yourself is to stop immediately and that no disciplinary action is to be taken against you in regard to any matters currently known.

I have transferred management responsibility for Mr. Winstanley's section from the Sustainable Communities Department to the Area Management Department. The line manager will be Gary Flynn.

Mr. Flynn will be in touch with you to discuss how we can arrange an orderly return to work in the near future. In the meantime you should stay at home and not make contact with work colleagues until Mr. Flynn is able to instruct otherwise, and you will then be able to return to work.

I apologise for all the distress that you must have suffered in this process, of which I was not aware until I took receipt of your letter on my return of leave on 28^th September. I hope you will be able to return to work in the near future and have a successful relationship with your colleagues under new management.

It is inevitable there will be some issues around your return, but I hope we will be able to deal with this in an adult and professional way and there will be no question of any victimisation for things that are now past."

(6) As part of Mr. Hope's investigation, the Appellant had met him and the Council's Chief Internal Auditor, Mr. Geoff Hill, on 7 October 2005. It was his evidence that he raised with them a concern that the Order governing parking restrictions in one of the zones was, and had been known for many years to be, invalid. The Tribunal did not accept that evidence.

(7) In accordance with Mr. Moore's decision, the Appellant had an initial meeting with Mr. Dale and Mr. Flynn on 3 November 2005 to discuss his return to work. As Mr. Moore had predicted in his letter of 21 October, it was clear that there were "some issues" about his return to his old job. The details of these are unclear, but they appear to have related to the attitude of the parking attendants towards the Appellant as a manager. Mr. Dale and Mr. Flynn decided that it was best to ask the Appellant not to return at once to his old role. Accordingly Mr. Dale wrote to him on 9 November 2005 (though the letter is described in the Reasons as having been "issued" to him on 14  November) proposing that when he first returned to work he should be engaged on a self-contained project, working from a different location from that where he had been based before his suspension. The introductory part of the letter refers in rather opaque terms to some outstanding difficulties and says that once it has been decided how those difficulties should be addressed, "we should then be in a position to allow you to return to your old job in so far as it currently exists". The letter then continues:

"Owing to the fact that you have been exonerated at this stage from the findings of the audit investigation, it is management's view that there is no reason for you to remain on suspension."

Mr. Dale proceeds to set out details of the proposed new role and says that he looks forward to hearing from the Appellant with his agreement. The evidence of Mr. Dale and Mr. Flynn was that they believed that the project in question was within the scope of the Appellant's contract but that they hoped to be able to get him back into his old job in due course.

(8) The Appellant returned to work in the role which he had been offered by Mr. Dale and Mr. Flynn on 30 January 2006. He did not find the position easy. His health began to suffer and within a short time he went off sick.

3. On 25 April 2006 the Appellant brought proceedings in the Employment Tribunal. He claimed that the Council's refusal to restore him to his original job constituted a dismissal (relying on Hogg v Dover College [1990] ICR 39); and that that dismissal was unfair both on "ordinary" grounds – i.e. under secs. 98 and/or 98A (1) of the Employment Rights Act 1996 – and because the principal reason for it was that he had made a protected disclosure (relying on sec. 103 (A) of the 1996 Act). He further claimed that he had in any event been subjected to a detriment by reason of having made a protected disclosure, contrary to sec. 47 (B) of the 1996 Act. So far as the disclosures were concerned, he relied on, first, the disclosure to Mr. Winstanley in November 2004 (see para. 2 (2) above), and, secondly, the alleged disclosure to Mr. Hope and Mr. Hill in October 2005 (para. 2 (6)). The detrimental acts of which he complained were not clearly identified in his pleading: the Grounds of Complaint annexed to his ET1, both in their original form and as subsequently amended, were essentially narrative rather than analytical. However, the position as helpfully analysed by Mr. Leiper and agreed by the Appellant's counsel (initially Mr. Hay and subsequently Mr. Falkenstein) was accepted by the Tribunal and recorded at para. 1.3 of its Reasons as follows:

" The claimant claimed that he suffered a detriment short of dismissal … . He claimed that the following treatment amounted to a detriment by his employer done on the ground that he had made a protected disclosure, namely:

1.3.1 His suspension

1.3.2 The continuation of that suspension

1.3.3 The making of allegations against him

1.3.4 The putting to him of a compromise agreement

1.3.5 The suggestion that he should resign

1.3.6 The attempt to segregate him from his colleagues

1.3.7 His exclusion from Christmas parties."

Some of those headings are a little obscure, but it is clear from a subsequent paragraph in the Reasons (para. 4.3) what the Tribunal was in each case referring to. The "suspension" referred to at 1.3.1 is the original suspension on 16 December 2004. The "continuation of that suspension" and the "making of allegations" referred to at 1.3.2-3 refer to Mr. Gittens' communication to the Appellant on 22 April 2005: see para. 2 (3) above. The "putting ... of a compromise agreement" and "suggestion that he should resign" are a reference to the conversation with Mr. Marshall on 16 September 2005: see para. 2 (4) above. The "attempt to segregate him from his colleagues" is a reference to the Appellant being required, on and after 5 November 2005, to work in a new role. We need not be troubled with item 1.3.7, because it was abandoned in the course of the hearing (see para. 4.4 of the Reasons).

4. The claim was heard by an Employment Tribunal sitting at Thornaby-on-Tees over ten days in two tranches in April and December 2007. By a reserved judgment sent to the parties on 27 December 2007 the Tribunal found that the Appellant had been unfairly dismissed contrary to sec. 98A(1) of the 1996 Act; but it dismissed his claims under the whistleblower provisions. Since, to anticipate, there is no appeal (or cross-appeal) against the decision as regards unfair dismissal we need not seek to summarise its reasoning on that aspect. As regards the claim under sec. 48 (1A) of the 1996 Act – that is, that the Appellant had been subjected to a detriment contrary to sec. 47B - the Tribunal's conclusion appears at paras. 4.4 and 4.5 of the Reasons in the following terms:

"4.4 We have a strong suspicion that the decision to suspend, the continuation of that suspension and the raising of allegations were acts of victimisation motivated by the disclosure to Mr. Winstanley. However, we recognised that we had not heard evidence from the principal players and that in forming that conclusion we could be making an unfair inference. The putting to the claimant of the compensation agreement by Mr. Marshall was obviously seen by the claimant as a detriment, i.e. a device to engineer his departure, although it could also be looked at as an offer which was potentially to his benefit. The claimant's application to the Tribunal was on 27^th April 2006. He had submitted timeously a grievance, and it therefore follows that any detriment which precedes the 28^th October 2005 is out of time. The only pleaded detriment, therefore, that is in time is the attempt to segregate the claimant from his colleagues, the claimant not having pursued the non-invitation to Christmas parties with any of the witnesses and it is understood by the Tribunal that he has abandoned that argument.

4.5 We are satisfied that Mr. Moore's intervention was with the intention of drawing a line under the preceding events and reinstating the claimant to his job. His stated aim was to prevent the claimant from feeling that he was being victimised for whistle-blowing. We did not hear from Mr. Moore, who is ill, but we are satisfied from his statement and from his actions, and from the evidence of Mr. Hope that, whether or not he considered there was any merit in the claim of whistle-blowing, he did not want the claimant to suffer any further victimisation in respect of it. We have no doubt that Mr. Dale and Mr. Flynn were not in any way motivated by any disclosure which the claimant made to Mr. Winstanley. We cannot link the pleaded acts of victimisation after Mr. Moore's intervention with those that proceeded it and our conclusion therefore that any detriment short of dismissal on the grounds of protected disclosure is out of time. No arguments were presented as to why it would be just and equitable to extend the time limit, nor do we see any basis on which it would be just and equitable to do so."

5. The expression of the Tribunal's reasoning is somewhat telescoped. It can be expanded as follows:

(1) The right on which the Appellant relied in this part of his claim is a right "not to be subjected to any detriment by any act, or any failure to act, by his employer done on the ground that [he] had made a protected disclosure" (see sec. 47B (1)). Thus his cause of action consisted in the doing by the employer of an "act" or "acts" – to which we will refer (using the phraseology common in relation to the cognate provisions of the various anti-discrimination statutes) as the "acts complained of" - on the proscribed ground, by which he was subjected to a detriment (cf. London Borough of Harrow v. Knight [2003] IRLR 140, at para. 5 (p. 142)).

(2) Any claim in relation to an act complained of which was "done" more than six months prior to the presentation of the claim – that is, prior to 28 October 2005 - would be out of time, subject to any power to extend time. The period of six months derives from:

(a) the three-month time limit prescribed by sec. 48 (3) (a) of the 1996 Act, which provides that a tribunal shall not consider a complaint under sec. 48 unless it is presented

"… before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them"

coupled with

(b) the extension of three months pursuant to reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

(3) No case had been made out for an extension of time. The Tribunal wrongly referred to the relevant power being to extend time where it was just and equitable to do so, whereas in fact it is exercisable only where the presentation of the claim in time would not have been reasonably practicable (see sec. 48 (3) (b)); but Mr. Falkenstein (rightly) did not suggest that that error made any difference.

(4) In the present case the acts complained of by the Appellant were all acts rather than failures to act; and, subject to the points which we have to consider below, the dates at which they were "done" were clear and as set out at para. 3 above.

(5) All of those acts were – again, subject to the point considered below – "done" before 28 October 2005 and were accordingly out of time with the exception of 1.3.6, i.e. the imposition of a new role. It was accordingly unnecessary to decide whether any of them were done on the proscribed ground, although the Tribunal expressed a strong "suspicion" that at least 1.3.1-3 were.

(6) As regards 1.3.6, it found that the act in question was not done on the proscribed ground.

6. The Appellant appealed on a number of grounds. However, the appeal has only been permitted to proceed on a single point raised by sub-paras. (a)-(d) of his pleaded Grounds. The Appellant relies (though it is not in fact expressly cited in the Notice of Appeal) on sec. 48(4) (a) of the 1996 Act, which provides that "where an act extends over a period, the 'date of the act' means the last day of that period". He submits that his suspension – i.e. the act complained of at 1.3.1 and/or 1.3.2 - was an act which extended over a period, namely until at least 9 November 2005 (being the date of Mr. Dale's letter referred to at para. 2(7) above), within the meaning of sec. 48(4)(a); and that accordingly it fell to be treated as "done" after 28 October 2005.
7. The point now relied on by the Appellant is not addressed in the Tribunal's reasoning at para. 4 of the Reasons, and it is not at all clear to us that it was ever taken, at least in this form. At para. 3.3 of the Reasons, in the section dealing with the law, the Tribunal says that "in order for an act to extend over a period there must be some thread which links the various acts of detriment" and goes on to refer to the decision of the Court of Appeal in Arthur v. London Eastern Railway Ltd. [2007] ICR 193: the first half of that statement looks as if it is a reference to sec. 48 (4) (a), but Arthur is concerned with the different question of the meaning of the phrase "a series of similar acts or failures" in sec. 48 (3) (a), and introduces the "connecting link" concept in that context. Mr. Falkenstein does not (rightly) seek to rely on sec. 48 (3) (a) here. Counsel were not able satisfactorily to elucidate for us exactly what point was taken below; but Mr. Leiper did not seek to submit that we should not entertain the appeal as pleaded. We are content to proceed on the basis that the point is open to the Appellant.
8. We were referred to the principal authorities on the meaning of the phrase "an act extending over a period" in the equivalent provisions of the discrimination legislation – in particular Barclays Bank plc v. Kapur [1991] ICR 208 and Cast v. Croydon College [1998] ICR 500. (Neither counsel originally cited Commissioner of Police of the Metropolis v. Hendricks [2003] ICR 530; but Mr. Falkenstein in his submissions in reply invited us to look at it for the purpose of preparing this judgment and we have done so.) The authorities recognise the distinction between "a continuing act/situation/state of affairs" (all phrases used by Lord Griffiths in Kapur: see at pp. 213 F-H and 215 C-D), which does "extend over a period", and a "one-off" act, albeit with continuing consequences, which does not; and they help to elucidate the – on the face of it – slightly awkward concept of an "act" which "extends over a period". With the benefit of that elucidation, it seems to us that a disciplinary suspension is clearly "an act extending over a period" within the meaning of the statute. Although there is no doubt an initial "act" of suspension, the state of affairs thereafter in which the employee remains suspended pending the outcome of the disciplinary proceedings can quite naturally be described not simply as a consequence of that act but as a continuation of it. Mr. Leiper sought to persuade us that acts "extending over a period" should be confined to cases where the employer has in place a policy or "regime" which applies on a continuous basis. It is true that the reported cases are mostly concerned with facts of that kind – no doubt because they give rise to particular difficulties of analysis – but we see no reason to believe that they are the only possible example; and that view is supported by Hendricks, albeit that the kind of "continuing act" there considered was very different from that in the present case. We accordingly accept Mr. Falkenstein's submission that the suspensions complained of at 1.3.1 and 1.3.2 were not simply one-off acts done on 16 December 2004 and 22 April 2005 respectively but extended over a period. (We reach this conclusion the more readily because it seems to us that it would be difficult to regard the disciplinary proceedings against the Appellant as anything but an act extending over a period, and it would be very odd if the suspensions imposed for the purpose of those proceedings had to be characterised differently. The Appellant has not in fact put his case quite that way, perhaps because the disciplinary proceedings were not identified to the Tribunal as one of the acts complained of (though we should have thought that item 1.3.3 could be treated as referring to the disciplinary process); but even if he were now precluded from doing so the point is still available as an argument in support of the pleaded case in relation to suspension.)
9. That, however, is not sufficient to get the Appellant home. Even if his suspension extended over a period, when did that period come to an end? Mr. Falkenstein relies on the passage in Mr. Dale's letter of 9 November 2005 set out in para. 2 (7) above and says that that shows that the suspension continued at least until that date. (He indeed suggested that it might have continued until the Appellant's return to work on 30 January 2006; but that is unnecessary for his purposes.)
10. Mr. Leiper, however, relies on Mr. Moore's letter of 21 October 2005. He points out that that letter stated explicitly that the disciplinary proceedings were to "stop immediately" and that it makes it quite clear that, although the Appellant was to "stay at home" for the time being, that was only for the purpose of allowing arrangements to for his return to work. He submits that accordingly the suspension of which the Appellant complains came to an end when he received that letter: there is in fact no express finding as to when that was, but absent any exceptional circumstance it must have been prior to 28 October, and Mr. Falkenstein (who had notice of the point from the Respondent's Answer and from Mr. Leiper's skeleton argument) did not submit otherwise. From that moment on, the Appellant was no longer under a disciplinary suspension: his absence from work after receipt of Mr. Moore's letter, for the reasons given in that letter, was in fact a good example of a "continuing consequence" of an act complained of, as opposed to a "continuing act". Mr. Leiper did not rely only on the fundamentally different basis of the "act" itself – i.e. non-disciplinary "quasi-garden leave" (our phrase, not his) as opposed to disciplinary suspension. He pointed out that the Appellant was only entitled to complain of an act which was done for the proscribed purpose. Even if Mr Moore's request to the Appellant to continue to stay at home for the time being could be characterised as a continuation of his suspension, it was an act done for a wholly different purpose from his earlier suspension and one which was not done to any extent on the ground that he had made a protected disclosure. That is evident from the letter itself but is in any event the subject of an express finding by the Tribunal: see the initial sentences of para. 4.5. On that basis too – which may ultimately be only another way of making the same point – he submitted that the period over which the act complained of was done ended on or about 21 October 2005.
11. We find Mr. Leiper's submission compelling. For the reasons which he gives we hold that the relevant acts complained of had been done prior to 28 October 2005. That conclusion follows inevitably from the primary facts as found by the Tribunal and appearing from the correspondence before us. There is no need for the matter to be remitted to the Employment Tribunal. We accordingly dismiss the appeal.