Appeal No. UKEAT/0129/11/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
16 June 2011
Judgment handed down on 1 July 2011
Before
THE
HONOURABLE MR JUSTICE KEITH
(SITTING ALONE)
ST
JOHN AMBULANCE APPELLANT
MR
A MULVIE RESPONDENT
Transcript of Proceedings
JUDGMENT
AMENDED
THE HONOURABLE MR JUSTICE KEITH
Introduction
1.
The Claimant, Alastair Mulvie, was employed by the Respondent, St John
Ambulance, as its Director of Fundraising from 1 July 1999 until he resigned
from his employment on 12 February 2010 with immediate effect. He brought
numerous claims against the Respondent and a number of individuals. Those
claims were presented to an employment tribunal office on 4 May 2010, and
included a complaint under section 47B of the Employment Rights Act 1996
(“the Act”) that he had been subjected to detriments because he has made
protected disclosures. In due course, a hearing was convened to determine,
amongst other things, whether this complaint had been presented in time.
Following that hearing at an employment tribunal at London Central, Employment
Judge Henderson ruled that whether the complaint had been presented in time
should be determined by the employment tribunal when all Mr Mulvie’s claims
were to be considered on their merits. The Respondent now appeals to the
Employment Appeal Tribunal against that ruling.
The relevant statutory provisions
2.
Section 47B(1) of the Act provides:
“A worker has the 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.”
A worker’s right
to present a complaint that he or she has been subjected to a detriment in
contravention of section 47B of the Act is provided for by section 48(1A) of
the Act. Sections 48(3) and (4) of the Act deal with the time limit for
presenting such a complaint. They provide as follows:
“(3) An employment tribunal shall not consider a complaint under
this section unless it is presented –
(a) 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, or
(b) within such further period as the
tribunal considers reasonable in a case where it is satisfied that it was not
reasonably practicable for the complaint to be presented before the end of that
period of three months.
(4) For the purposes 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;
and, in the absence of any evidence establishing the contrary,
an employer shall be taken to decide on a failure to act when he does an act
inconsistent with doing the failed act or, if he has done no such inconsistent
act, when the period expires within which he might reasonably have been
expected to do the failed act if it was to be done.”
The detriments to which Mr Mulvie was allegedly subjected
3.
On 12 August 2010, a case management discussion took place before
Employment Judge Neal. Amongst other things, he ordered Mr Mulvie to produce a
schedule for each of his claims setting out certain information. The schedule
relating to Mr Mulvie’s complaint under section 47B of the Act had to identify,
in respect of each aspect of that complaint,
(1) the protected act,
(2)
the date of the protected act,
(3)
to whom the disclosure was made,
(4)
the nature of the disclosure,
(5)
the alleged detriment,
(6)
the date of the alleged detriment,
(7)
by whom the alleged detriment was committed, and
(8) a cross-reference
to where in the particulars of claim the complaint was set out.
4.
The schedule complying with that order relating to Mr Mulvie’s complaint
under section 47B of the Act runs to 11 pages. It set out a series of
protected disclosures going back to 2002, but in the column in which Mr Mulvie
was supposed to identify the detriments to which he had been subjected
as a result of the protected disclosures he claimed to have made, many of the
alleged detriments were not, on the face of it, detriments to which he
had been subjected. They were for the most part complaints that no action had
been taken on the protected disclosures he had made, and whether the failure to
take action on the protected disclosures he claimed he had made amounts to a
detriment to which he was subjected is an issue which will have to be
addressed if his complaint under section 47B goes to a full hearing. Having
said that, all the detriments to which Mr Mulvie claims that he had been
subjected to related to detriments to which he had been subjected either on
dates which he did not particularize or on dates which were before the end of
2009, with the exception of one, namely “the refusal of Sir Brian Jenkins [the Chairman
of the Respondent’s Council of Trustees] and the Trustees in January 2010 to
communicate with [Mr Mulvie] directly and/or engage its own grievance and/or
whistleblowing policy”. Accordingly, the Respondent proceeded on the basis that
that was the last occasion on which Mr Mulvie was alleging that he had been
subjected to a detriment.
5.
That detriment was cross-referenced to para. 163 of the particulars of
claim. Para. 163 of the particulars of claim reads as follows:
“On 12th January 2010 Jesper Christensen [a partner
in the firm of solicitors acting for the respondent] wrote to [Mr Mulvie]
stating that the respondent ‘was not going to revert to him further by way of
any “resolution” of concerns [relating to his public interest disclosure]’. He
stated that it was a matter for the respondent to consider internally. Mr
Christensen suggested that mediation would be a forum for [Mr Mulvie] and the
respondent to discuss the various other concerns which [Mr Mulvie] had
expressed. He stated that he had advised the respondent that it ought to meet
with [Mr Mulvie] in order to discuss and resolve the ongoing concerns he had
expressed and it seemed to him that mediation was the most appropriate way to
achieve this. Mr Christensen requested that [Mr Mulvie] should correspond with
[the respondent’s solicitors] in respect of all matters rather than the Prior
or any of the Trustees …. [Mr Mulvie] avers that the refusal of the
respondent to communicate directly with [him] and/or apply its grievance and/or
whistleblowing procedures even at this stage amounted to a breach of the mutual
term of trust and confidence and/or victimisation, and/or less favourable
treatment on the grounds of [Mr Mulvie’s] public interest
disclosure/disability/age.”
By cross-referring to that paragraph in the part of the schedule
relating to the detriment which occurred in January 2010, Mr Mulvie was saying
that the refusal of Sir Brian Jenkins and the Trustees to communicate with him
directly or to “engage” the Respondent’s grievance and whistleblowing
procedures related to what had been relayed to him by Mr Christensen’s letter
of 12 January 2010.
The original arguments before the Employment Judge
6.
In the light of these facts, the argument advanced on behalf of the Respondent
at the hearing at which the Employment Judge was to determine whether the
complaint under section 47B had been presented in time was as follows. When
the schedule is read with the particulars of claim, it is plain that the last
occasion on which Mr Mulvie was contending that he had been subjected to a
detriment was when the refusal to communicate with him and to “engage” the
grievance or whistleblowing policies had been conveyed to him by Mr Christensen
on 12 January 2010. That detriment amounted to a failure to act rather than an
act itself for the purposes of section 48(3)(a), if only because Mr Mulvie
himself described the detriment as a refusal to do something (which
amounts to a failure to do something). That triggered the application of section
48(4)(b) of the Act rather than the application of section 48(4)(a). The
question then was whether that failure to act was deliberate and when it had
been decided on. The failure to act had obviously been deliberate, again if
only because Mr Mulvie had himself categorised it as a refusal to do something,
and whenever it had been decided upon, it must have been decided upon by 12
January 2010 when Mr Mulvie had been told about it. It followed that Mr
Mulvie’s complaint under section 47B had to have been presented at the latest
within three months of 12 January 2010, i.e. by 12 April 2010. Since it had
not been presented until 4 May 2010, the complaint had been presented out of
time.
7.
The argument which was proposed to be advanced on Mr Mulvie’s behalf for
the hearing before the Employment Judge is apparent from the skeleton argument
which his then counsel, Ms Lisa Hatch, prepared for that hearing. That
argument was that some of the detriments to which it was claimed Mr Mulvie had
been subjected formed part of a series of similar acts or failures. They were
highlighted in a copy of the schedule attached to the skeleton argument but did
not include the one detriment to which he was alleged to have been subjected to
in January 2010. Accordingly, Mr Mulvie’s time for presenting his complaint
under section 47B had been postponed until three months after the last of those
acts. The issue whether the various detriments to which it was claimed he had
been subjected formed part of a series of similar acts or failures could not be
decided without evidence, which would have to be preceded by proper disclosure
and the preparation of bundles containing the relevant documents, and the
evidence would probably take many days to be given.
8.
In that connection, Ms Hatch relied on Arthur v London Eastern
Railway Ltd [2007] ICR 193. That was a case in which a complaint under
section 47B of the Act had been presented to the tribunal, and the issue was
whether there had been a “series of similar acts” for the purposes of section
48(3). Without hearing any evidence, the employment tribunal had ruled, at a
pre-hearing review, that there had not been a series of similar acts, and it
therefore excluded the majority of Mr Arthur’s claims as out of time. The
Employment Appeal Tribunal dismissed an appeal from that ruling, but Mr
Arthur’s appeal was allowed by the Court of Appeal, the Court of Appeal holding
that it was necessary for evidence to be called for the issue whether the
detriments had amounted to a series of similar acts to be properly
determined. Accordingly, the Employment Judge was being asked by Ms Hatch –
in her skeleton argument at any rate – to postpone the determination of whether
the complaint under section 47B had been presented in time to the full hearing of
the claim on its merits: only then could a proper determination be made about
whether the detriments had amounted to a series of similar acts.
9.
The Respondent’s response to that argument was simple. Whether or not
the detriments which Mr Mulvie claimed he had been subjected to were part of a
series of similar acts or failures was irrelevant if the last detriment to
which he had been subjected had taken place more than three months before the
claim was presented. That is apparent from Arthur itself, because
what Mummery LJ said at [35] was:
“In order to determine whether the acts are part of a series
some evidence is needed to determine what link, if any, there is between the
acts in the three-month period and the acts outside the three-month period.”
If there were no acts in the three months before the claim was
presented, it is not possible to look for any link between them and any other
acts. There was therefore no basis for the determination of the issue whether
Mr Mulvie’s complaint under section 47B had been presented out of time to be
postponed for the reason advanced on Mr Mulvie’s behalf.
10.
The Employment Judge did not agree with that. She simply said that
“mindful of the decision in Arthur” she accepted the submission
advanced on Mr Mulvie’s behalf “that it would be potentially dangerous for [the
tribunal] to decide on this issue [i.e. whether the complaint under section 47B
was in time] without hearing evidence from the parties”. Accordingly, she
made the ruling which the Respondent challenges on this appeal. In my
judgment, her ruling on the basis on which she made it was flawed for precisely
the reason advanced on behalf of the Respondent. If Mr Mulvie had not been
subjected to a detriment in the three months before 4 May 2010, the question of
a link between the latest detriment to which he had been subjected and earlier
detriments simply did not arise.
The
refined argument before the Employment Judge
11.
Mr Mulvie has been represented on the hearing of this appeal by new
counsel, Mr Simon Connolly. He says that the argument advanced to the Employment
Judge by Ms Hatch was refined at the hearing to take account of the argument
advanced on behalf of the Respondent for the first time at the hearing. Mr
Mulvie’s legal team had not known about the reliance which the Respondent would
be placing on the reference to Mr Christensen’s letter of 12 January 2010 in
para. 163 of the particulars of claim and the schedule. That is not a matter
of criticism: there had been no direction for the exchange of skeleton
arguments, the Respondent’s counsel (Ms Anya Palmer) had not been requested to
provide one, and the Respondent had not been asked how it proposed to put its
case on whether the complaint under section 47B had been presented in time.
But Mr Connolly told me that his instructions were that when Ms Hatch realised
at the hearing before the Employment Judge what the Respondent’s case was, she
said that part of Mr Mulvie’s case on the detriment to which he had been
subjected was that he had invoked the Respondent’s grievance procedure in
connection with his concerns, but that the Respondent had failed to address
them. She had not seen the letter of 12 January 2010. It had not been brought
to the tribunal because it had not been appreciated before then that the Respondent’s
argument was going to be based on it. But the point Ms Hatch made was that
whatever the letter of 12 January 2010 said, it would have to be read in the
light of Mr Mulvie’s allegation that the detriment to which he had been subjected
consisted in part of the Respondent’s failure to deal with the various
grievances which he had raised under the Respondent’s grievance procedure.
That failure had continued up to and including the date when he resigned from
his employment, 12 February 2010, which was less than three months before his
complaint under section 47B had been presented, though in order to determine
whether the failure to deal with Mr Mulvie’s grievances was a continuing one up
to and including 12 February 2010, it was necessary for the tribunal to examine
the evidence in detail, and that exercise should be postponed until the hearing
of all Mr Mulvie’s claims.
12.
Ms Palmer accepts that an argument along these lines was developed by Ms
Hatch before the Employment Judge. Indeed, that is apparent from the Employment
Judge’s reasons. She recorded Ms Hatch as saying that “part of the detriment
was the respondent’s failure to address [Mr Mulvie’s] grievances … [Mr Mulvie]
said that these failures continued right up to 12 February 2010 when he decided
to accept the respondent’s fundamental breach.”
13.
It does not look as if the Employment Judge addressed the refined
argument advanced on behalf of Mr Mulvie. She concluded that evidence was
needed to determine whether the detriments to which Mr Mulvie claims to have
been subjected were part of a series of similar acts or failures. She did not
consider whether evidence was needed to determine whether the detriment to Mr
Mulvie constituted by the Respondent’s failure to deal with his grievances
continued up to 12 February 2010, or whether it was brought to an end by the
letter of 12 January 2010. It is therefore for the Employment Appeal Tribunal
on this appeal to determine that question for itself.
14.
In my opinion, the answer is plain. If what lay behind Mr Christensen’s
letter of 12 January 2010 was the failure on the part of the Respondent to deal
with Mr Mulvie’s grievances, the letter, on Mr Mulvie’s description of it in
para. 163 of the particulars of claim, amounted to a refusal on the part of the
Respondent to consider his grievances under the apparatus contemplated by the Respondent’s
procedures. Instead, the Respondent had suggested that mediation should be the
forum in which Mr Mulvie’s concerns could be discussed with the Respondent.
Accordingly, up to 12 January 2010 the detriment may have been the Respondent’s
continuing failure to deal with the outstanding grievances which Mr Mulvie had
raised through its procedures. But the letter of 12 January 2010 had brought
that continuing failure to an end by the Respondent’s decision that it was not
going to deal with them at all through its procedures. That decision –
described by Mr Mulvie as a refusal to communicate with him or to
“engage” its grievance and whistleblowing procedures – could only be
characterised as
(a) a failure to act, i.e. a failure to proceed with a
consideration of Mr Mulvie’s grievances through the Respondent’s procedures,
and
(b) a deliberate failure to act, not only because it was described
by Mr Mulvie as a refusal, but also because “deliberate” in this context means
“unintended”, and there can be no question but that the Respondent intended to
bring Mr Mulvie’s use of the Respondent’s procedures to an end,
and has to have been decided upon by 12 January 2010 because that
was when the refusal was communicated to him.
Some additional arguments
15.
In the interests of completeness, I should add that a different argument
was advanced on Mr Mulvie’s behalf in the answer to the Respondent’s appeal
drafted by Ms Hatch when she was still instructed on Mr Mulvie’s behalf. The
argument was that Mr Christensen’s letter of 12 January 2010 was marked
“without prejudice”. That was said to cast “doubt on the respondent’s
assertion that they made it clear that they would not consider his grievances
any further”, and to determine whether the letter really meant what the Respondent
claims it meant, the letter should have been produced to the Employment Judge.
16.
That argument is not a good one. The Respondent did not need to produce
Mr Christensen’s letter since its effect had been summarised by Mr Mulvie in
para. 163 of his particulars of claim. The Respondent accepted that his
summary of the letter was accurate, and therefore there was no need for the Employment
Judge to see it. Moreover, I do not understand why the fact that it was marked
“without prejudice” could have cast “doubt on the respondent’s assertion that
they made it clear that they would not consider his grievances any further”.
In that context, I have read the letter of 12 January 2010 (admittedly without
ruling on whether it was permissible for me to do so) because Mr Connolly asked
me to do so, even though it had not been before the Employment Judge. I have
not discerned any material difference between it and Mr Mulvie’s description of
its contents in para. 163 of the particulars of claim.
17.
There is one further matter I should mention. Mr Connolly argued that
the contents of para. 166 of the particulars of claim amounted to a further
detriment to which Mr Mulvie had been subjected as a result of making protected
disclosures. Para. 166 reads:
“On or around 1st February 2010 [Mr Mulvie] became
aware of an advertisement on the respondent’s website for a ‘PA to Director of
Fundraising, Communications and Marketing (sic), Chief President and to
the Head of Communications’. The advertisement clearly excluded [Mr Mulvie]
and his role and the resources which should have been available to him as
Director of Fundraising.”
This was not one of the detriments relied on by Mr Mulvie in the
schedule produced pursuant to the order made by Employment Judge Neal at the
case management discussion on 12 August 2010. But leaving that aside, and
assuming that the advertisement amounted to a detriment to which Mr Mulvie was subjected
as a result of making protected disclosures, the detriment consisted of the Respondent
placing the advertisement on its website. The fact – if it be the case – that
it continued to be on the Respondent’s website until after 4 February 2010 does
not help Mr Mulvie. The act which constituted the detriment consisted of the
placing of the advertisement on the Respondent’s website. That was when on Mr
Mulvie’s case he was sidelined. The fact that he continued to be sidelined
until he resigned on 12 February 2010 does not mean that the specific act which
resulted in him being sidelined extended over that period. As the Court of
Appeal held in Sougrin v Haringey Health Authority [1992] ICR 650, there is a difference between an act which extends over a period and the
continuing consequences of such an act. The former can extend the time within
which a claim can be brought, but the latter cannot.
Conclusion
18.
In the circumstances, I have concluded that Mr Mulvie’s complaint under
section 47B had to be presented at the latest within three months of 12 January
2010, i.e. by 12 April 2010. Since it was not presented until 4 May 2010, it
was presented out of time. The Respondent’s appeal must be allowed, the ruling
of the Employment Judge must be set aside, and I record the fact that Mr
Mulvie’s complaint under section 47B was presented out of time. But that does
not mean that the Respondent is entitled to have Mr Mulvie’s complaint under
section 47B struck out. There is still section 48(3)(b) to be considered. Was
it reasonably practicable for the complaint to be presented by 12 April 2010?
If not, would it be reasonable to extend Mr Mulvie’s time for presenting it to
4 May 2010? Those are issues which have still to be addressed.
19.
Ms Palmer argued that the time for Mr Mulvie to have sought an extension
of time for presenting his complaint was when the Employment Judge was
considering whether it had been presented in time. He did not do that then,
and it is too late for him to do that now. I do not agree. There had been no
order setting out the issues to be addressed at the pre-hearing review, even
though the Respondent had set out the issues which it had wanted to raise.
Since the Employment Judge reserved her decision on the various orders to be made
following the pre-hearing review, it would be wrong to say that Mr Mulvie had
had to apply for an extension of time for presenting his complaint under
section 47B at the pre-hearing review in case the Employment Judge found that
it had not been presented in time. Since Mr Connolly told me that Mr Mulvie
wished to apply for an extension of time in the event of my ruling that his
complaint had been presented out of time, that is an issue which the employment
tribunal still has to address.
