United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Claimant	MR N SIDDALL (of Counsel) Instructed by: Kingston Upon Hull City Council Legal Services Chief Executive's Department The Guildhall Alfred Gelder Street Kingston upon Hull HU1 2AA
For the Respondent	MR N TOMS (of Counsel) Instructed by: National Union of Teachers Legal & Professional Services Hamilton House Mabledon Place London WC1H 9BD


 


SUMMARY

JURISDICTIONAL POINTS: Claim in time and effective date of termination

Having correctly held that three of the Claimant's four DDA claims were out of time, parity of reasoning made the fourth out of time as well, there being no continuing act for the Claimant to rely on. Judgment set aside.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about the time limit for presenting a claim of unlawful disability discrimination against a background of a transfer of an undertaking pursuant to TUPE 2006. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of Employment Judge Hildebrand, as he then was, sitting at a PHR at Hull, registered with reasons on 21 June 2007. The Claimant was represented by a regional officer of his union, the NUT, and today has the advantage to be represented by Mr Nicholas Toms of Counsel. The Respondent has been represented throughout by Mr Nicholas Siddall of Counsel.
3. The Claimant claimed disability discrimination in four respects. The Respondent challenged the jurisdiction of the Tribunal on the basis that claims were out of time and also took issue on the merits. The essential issue for the purposes of the PHR was whether the four claims analysed by Employment Judge Hildebrand were within time. He decided three out of four of them were not and declined to exercise discretion to extend time. There is no appeal against the three separate findings, nor against the decision not to extend time. Nor is there a cross-appeal against the approach of the Employment Judge, extended to all four of the claims, which was to examine only the Claimant's pleaded case and not on documentation associated with his grievance which was ultimately correctly submitted, having suffered a false premature start. The fourth claim was held to be in time, and will be heard.
4. The Respondent appeals against that judgment. Directions sending the appeal, as it was then constituted on what I will call the "time point", to a preliminary hearing, were given in Chambers by Silber J. When the case came on before HHJ Richardson pursuant to the order, directions were given for a full hearing before a judge alone, this case coming from an Employment Judge sitting alone, and an application to amend was made pursuant to a written form which had been produced prior to the hearing. Judge Richardson gave the Respondent liberty to apply on paper within 14 days to vary or discharge that particular order and for consequent directions. There was no such application.
5. The substance of the application is to contend that the Respondent is not, in any event, liable for the claims made against it since following a relevant transfer under TUPE 2006, any responsibility for disability discrimination is to be met by the transferee, in this case the City of Manchester College.

The legislation

6. The legislation in this case is not in dispute. It is summarised in paragraph 13 of the judgment which is as follows:

"… the time limit is set out in the Disability Discrimination Act in Schedule 3 Part I, in particular paragraph 3. In common with the limit in other discrimination statutes, the Tribunal is not to consider a complaint unless it is presented before the end of the period of three months beginning when the act complained of was done. An act extending over a period is to be treated as done at the end of that period and a deliberate omission should be treated as done when the person in question decided upon it."

7. A slightly odd approach needs to be taken in this case as it is now argued, for it is plain that the statute imposes a number of important restraints. The time limits specified by the Disability Discrimination Act 1995 Schedule 3 include the following:

"3 (1) A… tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) For the purposes of sub-paragraph (1)—

(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question decided upon it.

(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—

(a) when he does an act inconsistent with doing the omitted act; or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."

8. For the purposes of entering a claim, that three-month period is extended by a further three months where a procedure is reasonably thought to be en train, and it is common ground in this case that that applies in this case. The claim was presented to the Employment Tribunal on 30 January 2007 and, thus operating the rule of thumb which I set out in Joshi v Manchester City Council (UKEAT/0235/07), the period of six months less a day would enable any matter which occurred on or after 31 July 2006 to be within time. That would apply in the simple case of an act, whether or not there was a continuing act.
9. The Employment Judge directed himself by reference to the relevant authorities including Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1648 to which I will return.

The facts

10. There has, of course, been no trial in this case, so the facts can only briefly be stated. The Employment Judge said this:

"2. The chronology in its salient points is as follows. The Claimant began employment at Hull Prison on 15 September 2003. He transferred to a prison at Everthorpe in July 2005 having spent a period of time in the interim on secondment at the Respondent's Ings Centre. The claimant is a disabled person having had his right arm amputated above the elbow. The Respondent accepts the Claimant comes within the statutory definition of disabled. The Claimant had difficulty working at Hull Prison because of the heavy nature of the doors there and it was hoped that, after a secondment elsewhere, Everthorpe Prison would provide a more congenial environment for his work in the field of Prison Education. Unfortunately similar difficulties arose and the Claimant went on light duties in October 2005.

3. Subsequently the Claimant withdrew from work and made an express complaint related to 12 December 2005 of being made to feel degraded and humiliated at a management meeting.

4. The Claimant spent a long period of time from approximately December 2005 to 31 July 2006 on what was termed gardening leave. He had been employed on a 0.5 contract for eighteen hours per week and while he was at work he was able to earn overtime. While he was not at work on gardening leave the Respondent paid him his contractual hours.

5. On 1 August 2006 his employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations to another body to whom the Respondent had transferred its functions."

11. The Claimant made four separate claims. The Judge decided three of them were out of time and, without evidence to extend time, dismissed them. It is, however, necessary to say something about one of those dismissed claims for the Employment Judge said this:

"12. The fourth category is the one on which is spent the greatest amount of time in the course of the hearing. It is alleged that "The Respondent failed in its duty of care to the Claimant: For example since 12 December 2005 no meaningful support or attention has been forthcoming such that the Claimant has suffered hurt feelings and has been under the GP suffering from stress and depression."

18. The fourth category is an absence of action. This must be termed an omission as it expressly states: "No meaningful support or attention has been forthcoming since 12 December 2005."

19. … and the fourth is an omission and therefore following the provisions of Schedule 3 it is a deliberate omission and treated as done when the person in question decided upon it."

12. This finding should be considered since its juxtaposition with the finding on the allowed second ground is the subject of a submission of inconsistency on behalf of the Respondent. The approach taken by the Employment Judge was to consider the relationship between this and the grievance, but he made this firm finding:

"20. I appreciate the Claimant's representative has drawn my attention to a number of passages in a grievance letter written by the Claimant which suggests concerns in respect of failures after 12 December 2005, in particular in relation to the Claimant's attempts to obtain redeployment. It may be that those aspects will be relevant in the second category of claim but insofar as the fourth category is concerned there is no date specified and I approached the claim on the basis of the Claimant's pleaded case and not on the grievance documentation or other material which passed in correspondence between the parties."

That, as I have said, indicates an approach to the "pleadings" in all four of the claims.

13. In conclusion, the Employment Judge said on the surviving claim:

"16. The second category is regarding failure to transfer to suitable alternative work once it was clear that work in the Prison Sector was unsuitable. That category however does have an end date and specifies that the effect of that failure continued and effectively forced the Claimant to accept a transfer under the Transfer of Undertakings Regulations to another body when the Claimant would have preferred to have been redeployed inside the Respondent.

24. … It follows therefore that the Claimant's only remaining claim before the Tribunal is that of failure to transfer the Claimant to suitable alternative work and effectively thereby forcing the Claimant to TUPE-transfer on 1 August 2006 to unsuitable employment. That claim will proceed to hearing."

The submissions

14. The Respondent contended it should not be in these proceedings. Permission was given by Judge Richardson on the preliminary hearing to advance that argument. Quite correctly, it is accepted that the argument could not succeed unless the relevant principles were observed. These were set out in my judgment in Secretary of State for Health v Rance [2007] IRLR 665 which broadly include that the discretion to introduce a new point not advanced before an Employment Tribunal will rarely be exercised where there is a need to seek further evidence from the Employment Tribunal, but it may be more exigible if there is a discrete point of law. In deep embarrassment, it is submitted on behalf of the Respondent that the point was not taken below when it ought to have been. Nevertheless, it goes to jurisdiction and is correct.
15. As to the continuing act point, it is contended that the Judge erred, both in his inconsistent approach to the dismissed claim, number 4, and in his analysis of the pleaded case of the Claimant. On behalf of the Claimant, it is contended that there is unfairness in dealing with the TUPE point for there are points which could be made at a hearing which were not made and which indicate a remission. Mr Toms, with commendable discretion, did not advance the argument that the appeal on this ground should be dismissed, but simply remitted. He contended that there are arguments about estoppel and, as he put it, by analogy with housing possession cases, that an unlawful decision to transfer pursuant to TUPE would trump the operation of TUPE. It would be further necessary to consider whether the Claimant was indeed assigned to Everthorpe.
16. As to the continuing act point, it is contended that there was in place a provision criterion or policy at all times from 2005 to the point of transfer which was discriminatory in that it showed the Respondent was unprepared to accede to the Claimant's wish for a working environment which did not disadvantage him as a disabled person. In any event, the claim was made in time, for it was made just within the six months less a day pursuant to the extended period for registering a claim of disability discrimination. The transfer occurred on 1 August 2006. The claim was submitted on 30 January 2007. The claim should be allowed to proceed.

The relevant principles

17. The relevant principles for the treatment of a continuing act can be found in the judgment of the Court of Appeal in Lyfar above which in turn approved the judgment I had given in that case (see 2006 UKEAT/0651). In my own judgment, I cited the analyses which I had given on the same topic in Coutts & Co Plc and Anor v Cure and Fraser [2005] ICR 1098. The correct approach which is to distinguish between a one-off act which has continuing consequences and effects and a continuing act which is at all times a present policy.
18. As to the admission of new points, I have indicated the approach following Secretary of State for Health v Rance and I acknowledge that rare it is for such a discretion to be exercised in favour of an appellant who has nothing more than embarrassment to show for its Counsel not advancing the point below.
19. Finally, on the issue of assignment for the purposes of TUPE 2006, I was referred to Securiplan v Bademosi UK/EAT/1128/02, which was a case of an employee who was temporarily assigned, albeit long-term, to a particular site, in which I upheld the judgment of the Employment Judge in holding that he was not in the circumstances assigned to the second location and did not therefore transfer.

Discussion and conclusions

20. Applying those principles to the present circumstances, it is, with respect, an error by the Employment Judge to have decided the issues on claims 2 and 4 differently. As he correctly analysed, both of them represent a failure and an omission, and either they both continue or neither does. There is force in the argument that this is an inconsistent approach and it portrays erroneous analysis of the circumstances.
21. However, the question is whether the one upheld claim was rightly upheld. I accept that the approach to this case is controlled by the common material put before the Employment Judge which was to analyse the pleadings, for there has been no challenge to that approach. The pleadings plainly show two express assertions. The first is that the Claimant was employed in the undertaking of the Respondent until 31 July 2006 and thus, as he himself says on many occasions, his employment was transferred from the Respondent to Manchester City College by operation of TUPE 2006 on 1 August 2006, the new regulations coming into effect in April 2006.
22. It is important to reprise the nature of the allegation which is this:

"The respondent failed to transfer the claimant to suitable alternative work once it was clear that working in the prison sector was unsuitable (at least as early as August 2005) due the claimant's disability and effectively forced the claimant to TUPE transfer (1.8.06) to unsuitable employment despite the respondent being in the full knowledge of the unsuitable nature of the employment."

23. Here, the Claimant has expressly pleaded that the failure occurred at a particular date and it was that he was to be exposed to the TUPE transfer. In order to understand his position, it is necessary to say a little more. Since he was a teacher employed in the whole area by the principal local authority, he could be expected to have a number of opportunities to redeploy if the place he was sent to was unsuitable. He contended it was. There seems no dispute about that. He had difficulty opening heavy prison doors in the light of his disability, and what he hoped was to be transferred to another location within Hull's empire. He never was. The decision was made that Hull would not redeploy him, as he put it in August 2005.
24. The Claimant specifically dates the first occasion when the Respondent omitted to make a reasonable adjustment for his disability, and that is August 2005. He uses the words "effectively forced the Claimant to TUPE transfer". That word "effect" comes up again and again. As I have indicated, the Employment Judge in paragraph 16 of the judgment talks about the effect of that failure and "effectively forced the Claimant" and again that is repeated, in slightly different form, in paragraph 24, "effectively thereby forcing the Claimant to transfer".
25. The second thing to notice about the claim is that it is expressly disengaged from the grievance by reason of that holding of the Employment Judge. The grievance lodged by the Claimant tells his history and is sufficient for jurisdiction to be founded in the Employment Tribunal on these cases, for, on his behalf, the union wrote on 4 August 2006 saying this: "Given that Mr Matuszowicz was TUPE transferred to City College Manchester as of 1 August, I request the grievance be dealt with" and attached to it is a long grievance by the Claimant.
26. The grievance includes a good deal of the Claimant's history but does indicate at an early stage the Claimant's assertion of the difficulties which he suffered from August 2005. It also indicates, and indeed is said by Mr Toms once I pointed it out to him, that there had been a number of interventions since August 2005 reflecting different considerations by the Respondent. Mr Siddall accepts that here the Respondent is demonstrated to have been giving additional consideration to the material which it had in respect of the Claimant's wish to be transferred. For example, in papers produced for me today, a letter of 11 May 2006 from the Respondent indicates the collection of further material in order to inform the Respondent's approach and, on 28 July 2006, there is a clear refusal by Sue Spavin on behalf of the Respondent to take the matter further.
27. However, while, as the Employment Judge acknowledges, those matters may have been relevant to consideration of the second and surviving issue, focus on the pleaded case of the Claimant has to exclude those matters. He has never amended his claim form to indicate that these constitute separate interventions triggering new allegations or a continued fresh assessment by the Respondent of the case such as the line authorities including Cast v Croydon [1998] IRLR 318 CA which we followed in Coutts v Cure. Thus we are forced back on the simple pleaded case.
28. In my judgment, the submission of Mr Siddall is correct. This was an omission and insofar as it is useful to consider the judgment of HHJ Reid QC in Humphries v Chevler Packaging Limited UK/EAT/0224/06, it is clear that an omission is not a continuing act. I say insofar as it is necessary to consider it because we did consider this point in NCH Scotland v McHugh UK/EAT/0010/06 where we said this:

"We are asked by Ms Marsh to hold that HHJ Reid QC was wrong in his analysis. For the reason we have given above it is unnecessary for us to take that step. In any event we are not so minded. As the tribunal did not address the trigger point but seems to have confined itself to assuming there was a continuing act, we would hold that it approached this question correctly. As alleged, this was not a single one-off failure, but the continuing failure after numerous medical reviews to consider making the adjustments which the Claimant felt were appropriate."

29. I do not accept that an omission will always leave a respondent open at all times to the charge that it contains a continuing failure to make an adjustment. What happened was a continuing effect. He continued to suffer the effect of that single decision at all times during his career with this Respondent. His criticism of the Respondent's treatment was that he was not moved away from the prison. He knew that on a TUPE transfer to the Manchester City College, he would still be working at Everthorpe Prison, albeit under new managers and under a new contract, but it would be the same work because that is the effect of TUPE.
30. Manchester City College obviously, from its name, specialises in education but is likely to have more teaching opportunities in Manchester than in Hull. Hull is a local authority with many functions, one of which is education, but most of those are in the area of Hull. So the grievance of the Claimant, put neutrally, was that unless he were transferred by Hull to somewhere else within Hull's employment in the Hull area, he would by necessity continue to work at Everthorpe now under a different employer, and that was in his view an example of unlawful discrimination.
31. In my judgment, the Respondent's submissions are correct. This was a one-off act of omitting to make, on his case, the reasonable adjustment to transfer him to employment away from the prison and it was made in August 2005. It was not argued or pleaded for him that there were reviews of that decision in any of the additional documents, but out of fairness to the Claimant, I have looked at these to see if Cast v Croydon might assist him. The highest it can be put is that on 28 July 2006 the Respondent reaffirmed its existing decision and thus, if anything were to flow from that, a claim would have to be presented by 27 January 2007 and so this claim was three days out of time. It does not matter, I think, that what he complained about was a transfer three or four days later. It was the decision not to move him out of Everthorpe which he complained about which had been made almost a year earlier and so, with respect to the Employment Judge and by equiperation of the reasoning which he applied to claim 4, this too should have been dismissed as out of time.
32. I will then turn to the TUPE point. This is an unsatisfactory way to proceed. I can well see the point of law in this case which is that no example has been given to me of liability for disability discrimination committed by a transferor not transferring to the transferee. It seems quite likely that claims could be maintained against Manchester City College simply on the basis of the legal concept of a transfer of an undertaking, and he has claims against it. This is a new point. It is a point which goes to jurisdiction since the correct respondent in this case, if this submission were accepted, is not Hull but Manchester.
33. On the other hand, it is submitted by Mr Toms that there would need to be an exercise in fact finding. The Employment Judge never was exposed to arguments which I have had ventilated before me. I have to say I do not think much of them. Estoppel is a remedy between parties and cannot, on the argument I have heard today, give jurisdiction to a tribunal where it does not have it.
34. As to the argument about assignment, it seems unlikely that it could be argued with any force that the Claimant was assigned to anywhere other than Everthorpe. Indeed that was his case. He said, "I am assigned to Everthorpe, and if I continue to be assigned here, I will transfer on 1 August". It was a hope rather than actuality that he be transferred, and it seems to me that he was not assigned to anywhere other than Everthorpe or at least the Respondent's undertaking at Everthorpe. I am unable to derive any assistance from the analogue with housing law about whether a disability claim trumps TUPE.
35. All of those are matters which would have been available had the Respondent put the TUPE point before the Employment Judge. It is very tempting for me here to take an expeditious approach and to impose my view of the law when the Employment Judge has not had that advantage, and nor have I seen reasons from him on this point which would be of assistance to me. It is not necessary for my judgment, having disposed of the issue on point 1, but if I had to decide this point I would remit it to the Employment Judge for a hearing on whether or not the Claimant's contract of employment was transferred. This may be a sterile argument in the light of the unamended claim form and his constant assertion that that was what happened, but it seems to me, in fairness, that argument should be available to him if I am otherwise wrong in this appeal.

Disposal

36. For those reasons, the appeal will be allowed and the judgment of the Employment Judge set aside on the sole outstanding claim. I would very much like to thank both Counsel for their assistance on this matter today.
37. Mr Toms asked for permission to appeal on the grounds that there is a distinction between Humphries v Chevler and Talbot, and he suggested it is arguable. With respect, the test is whether it is arguable with a real prospect of success in the Court of Appeal or whether there are compelling reasons to take the case. As to the latter, this issue was presented to the Court of Appeal by intervening parties in Hay v Surrey, and the Court of Appeal did not feel tempted to take the point and, as to this case, it seems to me that the facts would militate against whichever conclusion were correct if there were indeed a distinction between the two approaches. But I give permission for this point to be taken. It must be borne in mind that the transfer point would also have to succeed at this level on behalf of the Claimant, and it is fraught with difficulty.
38. Now, it may be useful for this case to go back to the Employment Tribunal because the Court of Appeal will not be able to dispose of it in the Claimant's favour without deciding the transfer point. My order would still stand in respect of the transfer point. The Claimant has 21 days to go to the Court of Appeal, but if he does, Counsel must give careful consideration to activating my order which is that, if I am wrong on continuity, the transfer point still has to be decided and it would be better if that were disposed of at ET and EAT level before the continuity point were decided.
39. In respect of the powers under section 35 Employment Tribunals Act 1996, if it were necessary for me to decide this issue, I would remit the case to the Employment Judge. For the purpose of disposing of this case, therefore, I will allow both grounds of appeal and if it becomes necessary for the TUPE point to be decided, then my order is it is remitted to this same Employment Judge or, if that is not convenient, to another for the TUPE point to be taken. So both grounds of appeal are allowed formally.