United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBIN MASON (Solicitor) Employment Law Solicitor 36 Marlborough Road Sheffield S10 1DB
For the First Respondent	MR G HICKINSON (The First Respondent in Person)
For the Second Respondent	MS HILARY NORRIS (Solicitor) Sodexo UK & Ireland Legal Services Solar House, Kings Way Stevenage Hertfordshire SG1 2UA


 


SUMMARY

VICTIMISATION DISCRIMINATION

The First Respondent was employed by the Second Respondent in security at the premises of the Appellant. The Appellant required the Second Respondent to remove the First Respondent after he was discovered making covert recordings of the Appellant's staff. The Second Respondent did not have an alternative position for the First Respondent and dismissed him. The First Respondent alleged he had been subjected to a detriment by the Appellant contrary to s.48(1B) of the Employment Rights Act 1996. He made his complaint to the ET more than three months after the Appellant required his removal from site but less than three months after his dismissal by the Second Respondent. Held: his complaint was out of time. The detriment was the requirement of removal and the subsequent dismissal by the Second Respondent could not be said either to be an act or deliberate failure to act by the Appellant or part of a continuing act.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal by Unilever UK Limited against a decision of Regional Employment Judge Sneath sitting at Leeds on 6 March of this year on a prehearing review. He concluded in the prehearing review that the claim brought by the Claimant against Unilever was within time and he therefore allowed it to proceed. There were two issues before him but the only issue with which I am concerned is the issue as to time.

Introduction

2. The series of events is that Mr Hickinson, the First Respondent to the appeal and the Claimant below, had been employed in security at Unilever's site from October 1992 though, in fact, originally he was employed by Unilever, and his employment was only passed to the Second Respondent, Sodexo, a few years later.
3. As far as one can tell, matters had run pretty smoothly over those many years though things were clearly getting a little fraught early in 2008. On 4 July 2008, Mr Hickinson revealed that he had been making covert recordings of what certain workers at the site were doing and, as a result, on that date an email from Unilever to Sodexo resulted in his being removed from the site. Unilever were no longer prepared to have him working at that site.
4. Sodexo considered over the next few weeks the possibility of employing him at some other site. That did not come to anything and on 2 August 2008 Mr Hickinson was dismissed. He appealed against that dismissal and his appeal was dismissed on 29 September 2008. On 6 October 2008 he brought proceedings by his ET1.
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6. So far as the claim against Unilever was concerned, that was a claim pursuant to section 48(1A) of the Employment Rights Act and section 47B(1) . By 48(1A):

"A worker may present a complaint to an employment tribunal that he is being subject to a detriment in contravention of section 47B."

By section 47B(1):

"A worker has a right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

7. The remaining relevant material parts of section 48 are 48(3)(a):

"An employment tribunal shall not consider a complaint under this section unless it is presented:

(a) before the end of a 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."

8. Then 48(4)(a):

"For the purpose of subsection (3) –

(a) where an act extends over a period the date of the act means the last day of that period."

and (b):

"A deliberate failure to act shall be treated as done when it was decided on."

Unilever's Claim

9. The basis of Unilever's claim that the ET1 was out of time was that more than three months had elapsed between 4 July 2008 and 6 October 2008. What it said was that the act that it had done, therefore any detriment, occurred on 4 July 2008. There was no good reason why proceedings should not have been begun on or before 3 October 2008 and therefore the ET1 was out of time.

Response to Unilever's Claim

10. The response to that was that there was a continuing act or series of acts and therefore time ran from the culmination of events with the dismissal on 2 August 2008 and therefore the ET1 was in time.

Decision re 6 March 2009 Hearing

11. The Employment Judge dealt with the point at paragraphs 12 to 15 of his decision. He pointed out that the report by Unilever's site manager on 4 July 2008 was that the recordings had been made without knowledge and expressing his dissatisfaction. He then referred to section 48(3) and at paragraph 14 he said:

"The act on 4 July set in chain a series of events, the first of which was the removal by the first respondent of the claimant from the second respondent's site. They then obliged the claimant to look for an alternative assignment and when he failed to do so, the first respondent dismissed him. It also dismissed him having regard to the second respondent^'s view of the covert recording, something which, on the face of the letter dated 9 July from the first respondent, had had a mitigating effect on the charge of gross misconduct which he then faced. Be that as it may, I have decided that it would be wholly unrealistic to isolate the complaint in the email of 4 July from its consequences. In my judgment, it is only sensible in terms of what is just to take the act and its consequences as a whole. Doing so means that there was an act over a period and the last day of that period was the date on which the claimant was dismissed. That was 2 August. That fell within the limitation period so that the claim against the second respondent was presented in time."

12. He then went on to say at paragraph 15::

"…I found it impossible to isolate the actions of the second respondent in such a way as to be able to make a judgment about the prospects of the claim against that respondent."

13. The only authority that I have become aware of is London Borough of Harrow v Knight [2003] IRLR 140. It was not referred to before me but, which I am not going to ask for submissions on since it reinforces the view that I formed anyway. At paragraphs 9 and 10 of the judgment Mr Recorder Underhill QC, as he then was, identified in paragraph 9 three alleged detriments. He said that the Tribunal was not concerned with the first two which were dismissed on other grounds and there was no cross appeal. He went on:

"As to the third, there is no doubt that Mr. Knight suffered the alleged breakdown in his health; and that is obviously in one sense a 'detriment' (though as to this, see paragraph 12 below).

(3) The act (or omission) of 'subjection"'

10. The Tribunal did not expressly address this step. As noted above, in paragraph 1 of the Reasons it asked simply whether Mr. Knight suffered a detriment 'related to' his having made a protected disclosure; and in the crucial paragraph 17(e) it found that 'the Applicant's medical condition is related to the disclosure'. That elision of the doing by the employer of an act and the suffering by the employee of the detriment meant that the Tribunal never focused on what precisely it was that the Council did or failed to do. That was potentially important, not only because you need to identify the act in order to ask on what ground the employer did it but also - in the present case - because the events which give rise to the present claim straddle the coming into force of the 1998 Act on 2 July 1999, and only acts done on or after that date were capable of founding a complaint under s. 47B. Sometimes the doing of the act and the suffering of the detriment are for all practical purposes identical: for example, where the victimisation takes the form of disciplining an employee, the imposing of the disciplinary sanction by the employer and the suffering of it by the employee are two sides of the same coin. But that is not always so, and it was not in the present case: the Council did not on any view directly inflict Mr Knight's illness on him - the most that could be said was that their acts or omissions caused or contributed to it."

14. In this case, the detriment inflicted was, so far as one can tell, the sending of the email of 4 July which resulted in the removal of Mr Hickinson from Unilever's site. In my judgement, the removal from the site was itself a detriment irrespective of the subsequent dismissal. Therefore, as at 4 July 2008 a claim arose. That of course does not answer the question of whether there was then the continuing infliction of a detriment which ran through to the date of dismissal to make the ET1 in time.
15. In order to determine whether it could properly be said that there was some continuing act, I have looked through the material which was put before the Employment Tribunal beginning with the ET1 where at paragraph 5.1(1), Mr Hickinson said:

"I have the right not to be subjected to any detriment by any act (including recording covertly) in accordance with sec [section] 44 of the ERA. Despite this protection, Unilever have banned me working on their site at Seacroft and Sodexo dismissed me from their employment."

16. Overleaf, 5.1(2), he said:

"Sodexo failed to make any representations to Unilever on my behalf. And they failed to offer any alternative position."

17. What was being put there was quite firmly the ban on his working at that particular site.
18. Then in the course of email exchanges with Mr Mason, the solicitor representing Unilever, Mr Hickinson said:

"I am claiming I suffered the ban on 4 July 08, after I made the protected disclosure (using recordings) to Unilever and Sodexo on the 2^nd July 08. The ban was an unfair detriment albeit implemented by Sodexo but it was forced upon them by Unilever pressure.

The Unilever pressure was persistent and ensured the ban was extended over a period between 4^th July and 1^st August. Therefore, in accordance with sec [section] 48(4)(a) the 'date of the act' means the last day of that period."

19. At page 49 there is some support for that in the dismissal letter dismissing the appeal which concludes:

"Therefore, taking into consideration all the factors in this matter, it is my decision to uphold your dismissal from Sodexo for a breach of trust and confidence and as a result of Unilever's pressure.

Please be advised that my decision is final and you have no further right of appeal."

20. Finally, at page 40, the other side of the coin, at paragraph 10.5(3) of the ET3, Unilever said:

"The claimant was made aware of that complaint dated 4 July 2008 shortly thereafter and it was therefore reasonably practicable for him to have filed his claim within the due time."

21. They had not, I think, specifically previously in the ET1 referred to anything other than the Second Respondent's written complaint to the First Respondent dated 4 July 2008 (see paragraph 3 of page 39, "Additional Space for Notes").
22. Against that background one has to look and see what it was that the Employment Judge was deciding. If what he was saying is that the act by Unilever was the email of 4 July 2008, then, in my judgment, he was wrong in law because he sought to run the act and its consequences together into a single whole forming "the act", a continuing act or series of acts which culminated on the day of the dismissal. If what he was saying was that the evidence discloses continuing pressure over the entirety of the period, then although not terribly happily expressed, what he was finding was that there was indeed a single continuing act of the continued pressure. Were it possible to read his decision in that way, I would take the view that that was a matter of fact for him to have found that if he was entitled to find that on the evidence which was before him (which would, I think, have been just about practicable on the material that I have read). I would have held that the decision which he had reached was one which disclosed no error in law, and therefore not one with which this Tribunal could interfere.
23. But I am afraid that is not how I read his decision. It seems to me that he has fallen into the error identified by Mr Recorder Underhill QC, as he then was, of conflating the act and the consequences. What he is saying is that there was a single act, namely, the email of 4 July 2008 as a result of which the Claimant suffered detriment in that he was removed from the site, and that he is looking at that together with the consequences. That, in my judgment, particularly in the light of what is said in London Borough of Harrow v Knight, is not permissible. Given, it appears to me, that his finding was that there was a single act causing the detriment, namely the sending on 4 July 2008 of the email, and I can see no evidence of there having, for example, been follow-ups where Sodexo say, "Can he not come back?" and Unilever say, "No"; and indeed, Mr Hickinson's case is to the contrary. One of his complaints against Sodexo is "you did not do anything to assist me".
24. Given that, it seems to me that the Employment Judge was in error when he held that there was something which had to be looked at as a whole to use his expression, "Take the act and its consequences as a whole" and that he should therefore not have held that the claim was presented within time.
25. Since it does not appear to have been argued that it was not practicable to present the claim within time, and indeed since the first part of the detriment clearly was the removal from the site on 4 July, and there seems to be no basis for saying that it was not reasonably practicable to present the complaint within the three-month period.

Conclusion

26. It follows there was no basis on which I could send back the matter to be reconsidered by the Employment Judge and I ought to allow the appeal to hold that the claim as against Unilever was made out of time and therefore should be dismissed at this stage.